Xiao SunDie Verträge zur Restrukturierung von Banken nach deutschem Recht

About this book deutschenglish

This work deals with an important segment of the restructuring law of banks which is principally regulated by §§ 45 et seq. KWG and the Credit Institution Reorganisation Act (KredReorgG) and the Financial Market Stabilisation Fund Act (RStruktFG). The book is set with the background of the dilemma of "too big to fail" or rather the moral harzard problem in the recent financial crisis. In order to solve this problem, the lawmakers have created a special procedure for restructuring of the systemically important banks. The existing restructuring measures under the normal Bankruptcy Act are essentially not able to correspond with the requirements of restructuring operations for systemically important banks. Therefore, the creation of a new special procedure is required for the restructure of a systemically important bank. Through the Restructuring Act, a two pillar model is built for regular liquidation and the restructuring of distressed banks – the reorganisation procedure according the KredReorgG and the regulatory procedure in the framework of the KWG. In addition, the Restructuring Fund (RStruktFonds) was established with the entry into force of the RStruktFG on 1. January 2011. The RStruktFonds has the instruments of guarantees and recapitalisation at its disposal, for which the funds can be applied.

However, the resources of the RStruktFonds was not ought to be flowed to banks, they must be used in favor of the acquiring entity (ÜN) instead, in which the systemically important part of the bank was already transferred, rather than in the systemically important distressed bank. The contract is one of the appropriate ways in which the terms of the restructuring between the ÜN and the RStruktFonds in concrete cases will be determined. In the study, the contracts for restructuring of banks in terms of the possibility of restructuring’s measures in accordance with the RStruktFG are included into the contracts of the guarantee and the contracts of the recapitalization divided.