The Federal Court of Justice (BGH, ruling of 24.06.2015, file no. IV ZR 411/13) has already decided that the direct insurance policy of a shareholder-managing director can be seized despite an irrevocable subscription right with reservation of revocation until the so-called vesting with the GmbH, even in the event of his termination due to insolvency. As a result, these assets are entitled to the GmbH’s insolvency estate for the purposes of the company pension scheme (bAV).
Right of segregation of ordinary employees
On the other hand, a right of segregation in accordance with § 47 InsO applies to normal employees as well as simple GmbH managing directors (BGH, judgement of 8 June 2005, file no. IV ZR 30/04), also in the case of employer-financed direct insurance policies, because the BGH does not apply the reservation to the case of withdrawal due to insolvency, but only to the case of the employee’s own termination.
Burden of proof on the insurer – if he does not pay
In the event of insolvency, the insurer (BoD) – ultimately the insured person – bears the burden of proof if no payment is to be made despite the insolvency administrator’s notice. Finally, the BoD risks having to pay twice in the end if the surrender value had been protected.
Insolvency administrators and creditors attach future claims for payment
Up to more than 90% of insolvency applications are filed late, which means that the insolvency administrator enforces any liability claims against the ex-management in order to seize future pension payments. The latter may then also seize the subscription right in particular from the managing director.
The capital or the surrender value is also seizable and can be revoked several times
In the case of direct insurance policies, the right of termination and the right to cancel the contract remain with the (first) policyholder (UN). This often also applies to private continuation after leaving the company and transfer of insurance claims to the (ex-)employee. The content of the agreement on transfer must be interpreted here. Often there is no transfer agreement, but the employer determined it vis-à-vis the BoD.
Without notice of termination by the policyholder, i.e. the (ex-)employer, a creditor of the insured person cannot receive the surrender value paid out by attachment alone (BGH, ruling of 02.12.2009, ref. IV ZR 65/09). However, this does not protect direct insurance from creditors of the insured person. This is because, according to this BGH ruling, the creditor can demand that the insured person demands that the former employer give notice of termination or transfer the right of termination of the direct insurance. By means of a termination by the UN or a transfer of the right of termination, it becomes attachable for creditors at the beneficiary. In the case of a deleted GmbH, a supplementary liquidation must be considered.
Revocation of direct insurance by employers, creditors and insolvency administrators?
The right of withdrawal for life insurance contracts concluded since 29.07.1994 up to and including 2007 in the event of incorrect withdrawal instructions does not only apply to private individuals who are considered consumers. Companies – from the sole proprietorship to the GmbH&Co.KG – are also entitled to this right, with the aim of obtaining far more from the insurer than the surrender value offers. In many companies, this option is also available to their creditors and insolvency administrators. As a result, the subscription right can also be cancelled with retroactive effect – the employee benefiting from the occupational pension scheme would be left empty-handed in old age and, once his claim(s) has (have) been lodged, could at best expect a normal insolvency rate of up to less than 3%.
Security trust does not protect retirement assets from creditor access
If the management has allegedly secured the assets for the occupational pension scheme with a trustee, the title or judgement against the ex-managing director can also be used to directly attach the assets with the trustee, insofar as this involves the retransfer of the trust assets (BGH, IV ZR 95/53; VII ZR 56/57; IX ZR 100/93). A lawsuit against the “security trustee” is usually not necessary.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
by courtesy of
www.experten.de (published on 22.05.2019)
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About the author
Dr. Johannes FialaPhD, MBA, MM
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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