Glossary · Winding up

Duty to file for insolvency (Insolvenzantragspflicht)

Also: Insolvenzantragspflicht, Insolvenzverschleppung, delaying insolvency

In short

If a GmbH or UG is insolvent or over-indebted, the management must file for insolvency without culpable delay, at the latest three weeks after insolvency occurs and six weeks after over-indebtedness occurs. Anyone who fails to do so commits a criminal offence.

Duty to file for insolvency (Insolvenzantragspflicht) explained

The duty applies to the members of the representative body, i.e. the managing directors, and in liquidation to the liquidators (Sec. 15a (1) InsO). If a GmbH has no managing director, every shareholder is also obliged (Sec. 15a (3) InsO). Partnerships without a natural person as a fully liable partner, such as the GmbH & Co. KG, are also covered. Anyone who does not file, or does not file in time, commits a criminal offence (Sec. 15a (4) InsO). The managing director must in principle personally reimburse the company for payments made after insolvency has occurred (Sec. 15b InsO). If in doubt, Recht 24/7's insolvency rapid check helps, for €169 net plus VAT.

Legal basisSec. 15a, 15b InsO

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Related terms

LiquidationLiquidation is the orderly winding up of a dissolved company: completing ongoing business, realising assets, paying creditors and distributing the rest to the shareholders. For a GmbH and UG, it follows the dissolution resolution and ends with deletion from the commercial register.LiquidatorThe liquidator winds up the dissolved company and represents it during this phase. This is usually the previous managing directors, but the shareholders can also appoint other persons.GmbH (limited liability company)The GmbH is a corporation and legal entity formed by one or more persons with at least €25,000 share capital. As soon as it is entered in the commercial register, in principle only the company's assets are liable for its debts.KG (limited partnership)The KG is a commercial partnership with at least one partner with unlimited liability (general partner) and at least one limited partner whose liability is limited to a liability amount. It is entered in division A of the commercial register.Managing director (Geschäftsführer)The managing director runs the GmbH or UG and represents it in and out of court. They must be a natural person with full legal capacity and are appointed by the shareholders.Partnership (Personengesellschaft)In a partnership, at least two partners join together, and the partnership depends on their personal involvement; examples are the GbR, OHG, KG and PartG. There is no minimum capital, but at least one partner is liable without limit.

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