bAV: Insolvency protection solution in direct insurance

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by Johannes Fiala, Lawyer (Munich), M.B.A. (Univ.Wales), M.M. (Univ.), Certified Financial and Investment Advisor (A.F.A.), EC Expert (C.I.F.E.), Banker ( )
Employers have always tried to retain their employees by offering a company pension scheme. One of the instruments is the employer-financed social benefit, the additional conclusion of a direct insurance. Vesting only occurs when the time requirements under the BetrAVG are met.
Preemptive Right:
Prior to vesting, the employee is not entitled to the granting of an irrevocable subscription right. By granting after vesting, the current value of the insurance becomes the employee’s property.
Insolvency Damages:
If the granting of the irrevocable subscription right is overlooked by the employer and employee, the insurance value regularly falls into the insolvency estate. The employer is then liable for breach of the duty of care under the employment contract, but the employee can only file a claim for the loss in the “table”. The claim is therefore only serviced “at the bankruptcy rate”.
Bankruptcy protection:
In its ruling of 8 June 2005 (Case No. IV ZR 30/04), the Federal Court of Justice gave its blessing to a special arrangement. The employer had granted an irrevocable subscription right from the outset, but with one restriction: the wording of the contract contained a proviso, or more precisely a condition subsequent. The consequence of this is that, according to the BGH, the condition that “the employment relationship ends before the occurrence of the insured event and the vesting conditions according to the BetrAVG” can no longer occur upon termination of the employment relationship in insolvency.
Limited irrevocable subscription right:
This “restricted irrevocable subscription right” thus protects the employer from the outset, because the irrevocability of the subscription right automatically comes into effect as soon as vesting under the BetrAVG is given. Furthermore, it protects the employee in the event of insolvency, because in the view of the BGH the purpose of the resolutory reservation has ceased to exist and its conditions can no longer be met in the future. The decision shows that the subscription right can also be designed to be insolvency-proof from the outset in the case of employer-financed direct insurance, and that this also professionally avoids future liability on the part of the employer arising from a breach of duty of care. Not every insurer has supplied appropriate forms with the contract when it was concluded. Here, insurance brokers in particular can still make improvements.

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Dr. Johannes Fiala Dr. Johannes Fiala

Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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