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德国破产保护制度

法兰克福有一位带两个孩子的单身母亲,向35位债主举债4万欧元。自己无力偿还,债主又不愿大幅减免,她就向法庭申请了个人破产。根据法庭判决,破产6年内是她的限制行为期。为保证她和家庭破产后的基本生活,这期间月净收入在1560欧元以内可归个人所有,超出部分的50%将用于还债。如果她买彩票中大奖或者有其他一次性收入,这笔钱也不必用于还债。破产期间,她将不得有奢侈性消费,出行不能坐飞机头等舱或火车头等座。 不过,6年以后,她的负债将归零,她在个人征信系统中的不良记录将被消除。

Section 287 Debtor's Request

(1) Discharge of residual debt shall require a request on the part of the debtor, which should be joined with his request to open the insolvency proceedings. If it is not joined with the latter, it shall be submitted within two weeks of the reference in accordance with section 20 subsection

(2) Such request shall be accompanied by a statement assigning the debtor's garnishable claims to emoluments due to him on account of his employment or to emoluments replacing them to a trustee to be appointed by the court for a period of six years following opening of the insolvency proceedings. If the debtor had assigned or pledged such claims to a third party already prior to his request, he shall indicate such assignment or pledge in his statement.

(3) Agreements excluding, making dependent on a condition, or otherwise restricting the assignment of claims on the part of the debtor to payments resulting from employment or current payments in lieu shall be ineffective insofar as they would obstruct or be detrimental to the declaration of assignment pursuant to subsection (2), first sentence


Section 295 Obligations of the Debtor

(1) During the period of the statement of assignment the debtor shall be obliged to

1. engage in adequate gainful employment or, if he is unemployed, to seek such employment and not refuse any reasonable activity;

2. transfer to the trustee half the value of property acquired by him by way of succession or with respect to his future status as heir;

3. inform the insolvency court and the trustee immediately of any change of residence or place of employment, not conceal any emoluments covered by the statement of assignment or any property covered by no. 2. and disclose to the court and the trustee at their request his gainful employment or his efforts to find such employment as well as his emoluments and his property;

4. make payments to satisfy the insolvency creditors only to the trustee, and not provide an individual creditor with an advantage.

(2) If the debtor is self-employed, he shall be obliged to satisfy the insolvency creditors by payments to the trustee as if he were in adequate employment.


Section 296 Contravention of Obligations

(1) At the request of an insolvency creditor the insolvency court shall refuse discharge of residual debt if the debtor contravenes any of his obligations during the period of the statement of assignment and thereby impairs satisfaction of the insolvency creditors; this shall not apply to debtors without faulty conduct. Such request may be filed only within one year of the date when the creditor became aware of the contravention of an obligation. It shall be admissible only if the facts mentioned in the first and second sentences are shown to the satisfaction of the court.

(2) Prior to its decision on the request, the court shall hear the trustee, the debtor and the insolvency creditors. The debtor shall provide information concerning fulfilment of his obligations and at the request of the creditor confirm the correctness of his disclosure by an affidavit. If without a reasonable excuse he does not provide the disclosure or the affidavit within the deadline set for him, or does not appear at a meeting docketed by the court for him to provide the information or the affidavit, although properly summoned and without giving a reasonable excuse, discharge of residual debt shall be refused.

(3) The requesting party and the debtor may bring an immediate appeal against the decision. Refusal of discharge of residual debt shall be published.


Section 298 Coverage of the Trustee's Minimum Remuneration

(1) At the trustee’s request the insolvency court shall refuse discharge of residual debt if the amounts received by him for the preceding year of his effort do not cover minimum remuneration and if the debtor does not pay the uncovered amount although the trustee has requested the debtor's payment in writing within a period of not less than two weeks indicating the possibility that the debtor's discharge of residual debt may be refused. This shall not apply if the costs of the insolvency proceedings were deferred in accordance with section 4a.

(2) The debtor shall be heard prior to the decision. The court shall not refuse discharge of residual debt if the debtor at the court's request pays the uncovered amount to the trustee within two weeks or the amount is deferred in accordance with section 4a.

(3) Section 296 subsection (3) shall apply mutatis mutandis.