Page - 184 - in Austrian Law Journal, Volume 2/2021

ALJ 2021 Nunner-Krautgasser/Weidinger 184 enforcement under insolvency law:15 According to the new § 49a EO, enforcement proceedings of movable property have to be suspended if so-called "evident insolvency" ("offenkundige Zahlungsunfähigkeit") is detected. In such cases, creditors have to request the opening of insolvency proceedings to collect their claims. Debt settlement proceedings that are opened at the request of a creditor must then be designated as "general enforcement proceedings" ("Gesamtvollstreckung"): These are consumer insolvency proceedings that contain certain elements of enforcement proceedings (e.g. § 189a, § 189b IO). Only when the debtor himself requests a debt relief instrument, these proceedings continue as “regular” debt settlement proceedings (§ 184a [1] IO), otherwise the debtor remains in the general enforcement proceedings and thus in a state of "perpetual bankruptcy" ("ewiger Konkurs").16 II. Consumer bankruptcy proceedings in Austria A. Introduction and amendments to the law Until the Insolvency Act Amendment of 199317 ("KO-Novelle 1993"), insolvent consumers were faced with the bleak prospect of all funds exceeding the unseizable subsistence minimum ("Existenzminimum") being taken away from them until the end of their lives. Usually the assets were not even sufficient for the initiation of bankruptcy proceedings, let alone for the fulfilment of a reorganisation plan (at that time called "Zwangsausgleich").18 Therefore, the Austrian legislator felt the urgent need to change the insolvency law in order to improve the framework conditions for a debt discharge. In 1993, an amendment to the Bankruptcy Act was created by which a new part 7 about "special provisions for natural persons” was added to the IO. The main cause for this amendment were of course social aspects: People who find themselves in a hopeless economic situation should be freed from their debts within a relatively short time, at least compared to the previous regulation.19 The aim of such a "consumer bankruptcy" ("Privatkonkurs") is therefore, among other things, to enable the debtor to a fresh economic start.20 These provisions have significantly improved the prospects of natural persons to obtain a debt discharge. Additional amendments to the law in 1997, 2002, 2006, 2007, 2010 and finally in 201721 ("Insolvenzrechtsänderungsgesetz 2017", hereinafter IRÄG 2017) have gradually provided additional relief for the debtor.22 Since the IRÄG 2017, the debt relief of natural persons has been in the spotlight again, because every bona fide debtor is supposed to be granted debt 15 Mohr, ÖRpfl 2020 H 2, 22 (24). 16 ErwGr 770 BlgNR 27. GP 70. 17 Konkursordnungs-Novelle 1993 BGBl 1993/974. 18 Dellinger/Oberhammer/Koller, Insolvenzrecht4 Rz 478. 19 Dellinger/Oberhammer/Koller, Insolvenzrecht4 Rz 480. 20 Kodek, Insolvenzrecht2 Rz 551; Mitterlehner/Moser, Entschuldung Neu – Alles über die Privatkonkursreform, in Reiffenstein/Blaschek (Eds), Konsumentenpolitisches Jahrbuch 2017 (2017) 17 (19); Dellinger/Oberhammer/Koller, Insolvenzrecht4 Rz 480. 21 Insolvenzrechtsänderungsgesetz 2017 BGBl I 2017/122. 22 Mitterlehner/Moser in Reiffenstein/Blaschek 17 (18).