Abstract

The article synthetically presents two bases for claims connected with failure to file a petition in bankruptcy on time in the German law. § 823.2 of the German Civil Code (BGB) in connection with § 15a InsO stipulates liability for damages for the above mentioned failure. Additionally, the second sentence of § 64 GmbHG provides for specific liability for making so-called prohibited payments from the assets of a limited liability company (GmbH) after the occurrence of insolvency or after excessive indebtedness has been established. Moreover, the article discusses the issue of collective assertion by the receiver of damages for so-called old creditors, which is allowed under § 92 InsO. It has been indicated, however, that owing to the relaxation of the burden of proof in practice receivers follow the provision of the first sentence of § 64 GmbHG. The receiver may assert claims under the first sentence of § 64 GmbHG for the bankrupt’s assets since it is the company that is directly entitled to them (internal liability). An advantage of the solution providing for asserting those claims by the receiver is - as compared with individual assertion of claims by the affected creditors - the compliance of that solution with the par conditio creditorum principle and the principles of procedural economy. For this reason it is worth considering introduction of special legal instruments allowing for collective assertion of claims by the receiver into the Polish legal system.