Page - 193 - in Austrian Law Journal, Volume 2/2021

ALJ 2021 From debt to discharge 193 The second prerequisite for the initiation of insolvency proceedings is, according to § 71 IO, the existence of assets that can cover the initial costs of the insolvency proceedings, which are the procedural costs that are necessary for an initial overview of the debtor's asset situation.106 However, as many debtors would otherwise be denied even the initiation of insolvency proceedings and thus the chance of a discharge,107 under the conditions of § 183 (1) IO insolvency proceedings concerning natural persons may be initiated even if there are no cost-covering assets available.108 For this, the debtor must submit a precise inventory of assets and a settlement plan proposal according to § 183 (1) IO, as well as certify that his future income at least will suffice to cover the costs of the proceedings.109 In the meantime, the costs of the proceedings are covered by the state.110 However, an assessment of the existence of cost-covering assets is stipulated solely in those cases in which the requirements for the withdrawal of self-administration are fulfilled (§ 183b IO). Therefore, if the debtor is entitled to self-administration in debt settlement proceedings, the existence of cost-covering assets is not to be examined; the opening of the proceedings is thus facilitated. The legislator justifies this with the fact that no initial costs are incurred in self-administration.111 Another special provision concerning the opening of proceedings despite the lack of assets that can cover the costs of the proceeding is stipulated in § 183a IO: According to this provision, a creditor’s application for the opening of debt settlement proceedings after the determination of "evident insolvency" in enforcement proceedings according to § 49a EO is not to be rejected only because of a lack of assets to cover the costs of the proceeding (§ 183a IO). F. Insolvency estate and legal position of the debtor The insolvency estate is basically composed of all the debtor's assets subject to enforcement (§ 2 [2] IO). This principle is also applicable to debt settlement proceedings112 even if the debtor is entitled to self-administration.113 The insolvency estate does not include the unseizable portion of the debtor's earned income according to § 291a EO. The amount of the subsistence minimum depends on the amount of the income as well as the monetary support obligations of the individual debtor.114 The court has the possibility to increase (§ 292a EO) or reduce (§ 292b EO) the subsistence minimum. The debtor has free power of disposal over 106 Nunner-Krautgasser in Nunner-Krautgasser/Reissner 1 (17); Kodek, Insolvenzrecht2 Rz 231; Rechberger/Seeber/Thurner, Insolvenzrecht3 Rz 69; Schneider, Privatinsolvenz3 12; Mohr, Privatinsolvenz3 Rz 43. 107 Dellinger/Oberhammer/Koller, Insolvenzrecht4 Rz 489; Kodek, Insolvenzrecht2 Rz 560. 108 Kodek, Insolvenzrecht2 Rz 559; Nunner-Krautgasser in Nunner-Krautgasser/Reissner 1 (18); Mohr, Privatinsolvenz3 Rz 52; Feuchtinger/Lesigang, Insolvenzrecht4 122 et seq; Nunner-Krautgasser, ZinsO 2017, 2525 (2527); Dellinger/Oberhammer/Koller, Insolvenzrecht4 Rz 482. 109 Mohr, Privatinsolvenz3 Rz 55; Kodek, Insolvenzrecht2 Rz 560; Dellinger/Oberhammer/Koller, Insolvenzrecht4 Rz 490. 110 Nunner-Krautgasser, ZinsO 2017, 2525 (2527); Dellinger/Oberhammer/Koller, Insolvenzrecht4 Rz 491. 111 ErläutRV 770 BlgNR 27. GP 70. 112 OGH 9 ObA 39/97v JBl 1997, 742 = RZ 1998/19 = ZIK 1997, 187 = SZ 70/105; Rechberger/Seeber/Thurner, Insolvenzrecht3 Rz 219; Kodek, Insolvenzrecht2 Rz 328; Mohr, Privatinsolvenz3 Rz 112. 113 Kodek in Koller/Lovrek/Spitzer, IO § 2 Rz 26; Kodek, Insolvenzrecht2 Rz 328. 114 Mohr, Privatinsolvenz3 Rz 113; Dellinger/Oberhammer/Koller, Insolvenzrecht4 Rz 174.