Federal
09/23/2010
Case IX ZR 242/09
GESO; KO § 86; Insolvency Act § 66
The bankruptcy process has a newly appointed administrator to dismiss the administrator is not entitled to the grant of a ( partial) final bill .*)
BGH, Judgement of 23.09.2010 - IX ZR 242/09
Previous:
LG Stendal, 17.12.2009 - 22 S 71/09
AG Stendal, 27/05/2009 - 3 C 1038/08
...
The IX. Civil Division of the Federal Supreme Court hearing on the 23rd September 2010 by the presiding judge, Dr. Ganter, Judges Raebel, Prof. Dr. Kayser, Dr. Gehrlein and group
hereby:
The appeal against the verdict of the Civil Chamber of the Landgericht Stendal 2 of 17 December 2009 is rejected at the expense of the plaintiff.
By law
event
1 The defendant was a manager in the bankruptcy proceedings against the assets of the FV. By order of the bankruptcy court on 25 April 2006, he was dismissed from office and ordered the plaintiff to the new manager. The defendant gave the plaintiff range of documents. put to the request by the applicant, a final bill for its administrative work, but after he came not.
2 remained on presentation of a final bill for its administrative work, is made from a revenue and expenditure account, a balance sheet and a final report, direct action in the courts without success. The Court of Appeal approved revision pursued by the applicant on his request.
Grounds
3 The revision had no success.
4 1 The appellate court stated: The bankruptcy order can not see any requirement of the recall liquidator Granting of a partial final bill against third parties. Such obligations are also not a recourse to the provisions of the bankruptcy or insolvency law. While it was recognized that the dismissed manager is required, under § 86 and § 66 para 1 KO Insolvency Act, to create a final invoice. This obligation exists only with respect to the meeting of creditors and the court, not against the new manager. That would only encourage supervisory action of the court. It concluded that neither through the application of law or by analogy a right of action for the new manager will be concluded for the full enforcement proceedings. It is neither a plan anti-loophole, you can still there is a need for a right of action for the new manager. Such could not be from § 259 BGB, the principle of good faith (§ 242 BGB) or derived from § 666 BGB.
5 2 These statements hold legal examination.
6 a) The bankruptcy order contains no provision that would oblige a dismissed manager to put on his undertaking to the following account manager. It is limited to at the end of bankruptcy proceedings, to demand the distribution of producing a final report (§ 18 para 4 GESO) and the meeting of creditors and the creditors' committee given the right to demand more widely reporting and accounting (§ 15 paragraph 5, sentence 2 and § 15 paragraph 6, sentence 2 GESO). It follows from the claim, as well as the review admits derive not.
7 b) Contrary to the view of the appeal is a claim by the new manager of accounting by the dismissed manager is also not an appropriate use of standards of bankruptcy or insolvency policy, for there are neither the prerequisites of a law immanent nor those of a law of increasing development of the law before (see Larenz / Canaris, Methodology of International Law, 3rd edition, p. 191 ff and p. 232 ff). The question is already if the bankruptcy order, if they have a claim of the new manager of accounting does not regulate, even incomplete, is whether in view of their own settlement plan or the overall legal system, or if to exclude such a claim. In any event, contains neither the bankruptcy nor the bankruptcy order is a regulation, the conclusion, justified the legislature in the case of a statutory scheme establishes the issue in the bankruptcy procedure, a claim the new manager of accounting, or which would be incompatible with universal notions of justice and child rights principles would appear to deny such a claim the new manager (See the criteria BGH, Judgement of 20 January 2000 - IX ZR 58/99, BGHZ 143, 332, 334 ff; December 14, 2006 - IX ZR 92/05, BGHZ 170, 187 Rn and 14 f. 19 f).
8 aa) According to § 66 para 1 of the Insolvency Act has put to the termination of his office manager at a general meeting statement. A similar undertaking normalized § 86 sentence 1 KO. The duty applies and was recognized for the premature removal Administrator (Insolvency Act to § 66: BGH, decision of 14 April 2005 - IX ZB 76/04, ZIP 2005, 865, 866, 10 November 2005 - IX ZB 168 / 04, ZIP 2006, 93; Jaeger / Eckardt, Insolvency Act, § 66 Rn 9;. MünchKomm-InsO/Nowak, 2nd ed § 66 para 3;. FK-InsO/Kind, 5th ed § 66 para. 2; Uhlenbruck, Insolvency, 13 , § 66 para. 24 f; HK-InsO/Eickmann, 5 , § 66 para. 16; to § 86 KO: Kilger / Schmidt, bankruptcy laws, 17 , § 86 KO's note 1a; Kuhn / Uhlenbruck, KO, 11 , § 86 para. 2; Jaeger / Weber, KO, 8 , § 86 para. 1). If he does not fulfill this obligation, the insolvency or bankruptcy court against the administrator of a financial penalty set (§ 58 para 2 clause 1 Insolvency Act, § 84 para 1 sentence 1 KO, BGH, decision of 14 April 2005 - IX ZB 76/04, supra; Jaeger / Eckardt, supra para 21;. Uhlenbruck, supra para 25;. Eickmann, supra; Weber, supra). The other parties to the proceedings, and the new manager can inspire such supervisory measures. A legally enforceable right to their own accounts, the new manager does not.
9 bb) the scope of the Bankruptcy Act, contrary to what the revision of § 86 clause 3 KO otherwise. According to this standard, the subsequent managers had the right to object to the accounting manager of the recall raised. This stood in relation to the provision in § 86 clause 4 KO, after which the bill was accepted as if the date of the creditors' meeting no objections were raised. With the ability to raise objections, the new administrator could thus prevent the discharge of the previous administrator and obtain possible compensation claims. There is no enforceable right to financial reporting did not follow it. For this was no compelling need. Put the old administrator account does not, he could not relieve.
10 cc) is entitled to the new manager after the bankruptcy and the bankruptcy order is not enforceable claim against the accounting manager recalled, may be one can not also included in the scope of the bankruptcy order. If all of the recalled the administrator as a dismissed bankruptcy or insolvency the creditors against the Rechungslegung required. Whether such a duty manager with oversight of the recall measures of the bankruptcy court would be enforceable, may be left (the bankruptcy order does not provide for coercive measures, the Senate has left open whether the provisions of the bankruptcy and insolvency law are far mutatis mutandis, see BGH, Judgement of 27 April 1995 - IX ZR 102/04, ZIP 1995, 932 , 934). A lack of duty of the manager can dismiss any case be taken into account in setting his compensation and result in a claim for damages. The information interests of creditors can be satisfied by the new manager.
11 c) A claim of the plaintiff on accounts by the defendant also does not arise from standards or principles of civil law. Against the relevant observations Court of Appeals does not turn the revision. You are not objectionable from the viewpoint of the Audit Court.
12 d) The Court of the Senate is entitled to in the scope of the bankruptcy order the new administrator a claim against the former manager of access, if, on certain information concerning the current procedure is dependent (BGH, Judgement of 4 December 2003 - IX ZR 222/02, ZIP 2003, 326, 328). Such a claim is not the subject of the present, aimed at accounting action. The applicant seeks the grant of a non-specific, only the defendant's potential as a former administrator access, but a comprehensive and formal composition the mass and the former manager of revenue and expenditure and his other actions. That such special accounts, presupposed in the documents submitted and not visible to the defendant only available knowledge is not claimed by the plaintiff.
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