The Constitutional Court Ruled in Favour of Debtors Defending Against So-called Bullying Insolvency Motions

13. 1. 2017

In the heard case, the court dealt with a debt having been transferred several times and, eventually, divided amongst several creditors. This process was a calculated one for the purpose of enabling the insolvency motion to be tabled.

The Constitutional Court has pointed out that unfair damnification of any of the insolvency proceedings participants is to be excluded. In other words, not only swiftness and efficacy but also justice and fairness are to be observed. The debtor succeeded with their arguments during proceedings dealing with a constitutional complaint.

The real aim of insolvency proceedings should primarily be the defence of the public interest being based on a thorough investigation of the corresponding matter and realisation of all factual circumstances; for this purpose, the insolvency court may also provide other evidence than that offered by the proceedings parties.

The debtor, then, is entitled to defend at insolvency court and refute the reasonability of the insolvency claim lodged by the creditors; the court, however, is even obliged to provide evidence beyond such statements. If the debtor succeeds, they are entitled to claim compensation for damages caused by the insolvency motions.     

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