Nils HarbeckGläubigerbenachteiligung als normative Voraussetzung der Insolvenzanfechtung

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For the first time in the history of bankruptcy and insolvency regulation, a work presents the conditions of the creditor discrimination in the context of insolvency challenge, and at the same time distinguishes it from the challenge of the Civil Code, making sure not to neglect the requirements and effects of the challenge according to the challenge law. The author approaches the forms and the content of the characteristics of the creditors discrimination by a well comprehensible structure for the reader. Firstly, he introduces the reader into the genesis of the characteristic in general, in order to then present the rudimentary forms along with corresponding case examples prior to 1900. Next, he dwells on simple situations at times of the Bankruptcy Code in the period from 1900 to its expiry in 1999. The pivotal point of consideration is always there by The Supreme Court much cited, economic approach. The author questions this point of view based on Ludwig Häsemeyer’s critical view, who supports a legal approach, based on the origin of the reputation. The verdict of The Supreme Court in 2009 that underlies the analysis, in which the court classifies the process of brewing as a creditor discriminated legal act, serves as a prototype of the comparison of the results caused by different perceptions. Referring to the aspects contained in the verdict, and and therefore to be considered in the decision-making process, the author comes to an unexpected result, which, based of previous logical findings convinces entirely. Each dedicated insolvency lawyer is therefore obligated to deal with the results of this analysis closely before exercising the right of recission, in order to assess whether a mandatory feature of bankruptcy creditor’s discrimination really exists. After reading this work, processes that are lost due to insufficient knowledge of the central aspect of the creditor discrimination belong to the past: