Die subjektiven Voraussetzungen der Insolvenzanfechtung

The avoidance of fraudulent conveyances in German law (§ 133 Insolvency Code) has turned into a “catch-all” instrument, which frequently requires merely the knowledge of the debtors’ financial collapse. Though the provisions wide wording allows for this, the avoidance of preferences (§§ 130-132 Insolvency Code) – specifically meant to retroactively move the pari passu principle closer to the moment of factual insolvency – thus lost most of its raison d’être. It furthermore breaks with the origins of the actio Pauliana and leads to systematic inconsistencies (e.g. the avoidability of contemporaneous exchanges and the subsequent necessity to develop restrictions through case law). The current reform proposals will not solve these issues. What is needed is the reintroduction of a requirement that links the avoidance of fraudulent conveyances to an element of actual fraud to confine its scope and a simultaneous prolongation of the timeframe of preference-avoidances to prevent legal gaps.