Dissolution (company law)

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As resolution in is corporate and association law of the start of the period referred to by the company from a commercial activity in the phase of the liquidation of its business until / settlement full termination enters its existence.

General

As a rule, companies are founded for an unlimited period of time and exist permanently because of their economic stability. However, business, personal or legal reasons may require early termination. This dissolution only initially transfers the companies to the liquidation stage, because only a non- assets company as a legal entity is fully terminated with its registry deletion . The aim of the dissolution is therefore the complete termination. The dissolution does not result in any fundamental change in the legal nature of the company; the regulations for the respective legal form (HGB, AktG, GmbHG, GenG) remain applicable in this phase of the termination stage ( Section 131HGB). The dissolution only leads to the abandonment of the acquisition purpose and the conversion into a liquidation company.

Reasons for dissolution

German company law first distinguishes between commercial partnerships and corporations. Statutory reasons for dissolution are finally listed in § 131 , § 133 HGB for commercial partnerships (OHG, KG) . This regulation was adopted analogously for corporations in Section 60 (1) GmbHG (for the GmbH) and in Section 262 (1) AktG (for AG, KGaA).

The law provides for the following reasons for termination:

  • by the expiry of the time specified in the articles of association,
  • by resolution of the general meeting (75% of the represented share capital),
  • by opening insolvency proceedings against the company's assets or
  • by official deletion of the company due to lack of assets according to § 394 FamFG

There is rarely a dissolution because the time specified in the articles of association has expired, since most companies are closed for an indefinite period. The most common are liquidations due to bankruptcy or cancellation of office due to lack of assets. The opening of insolvency proceedings over the assets of the companies is in accordance with

statutory reason for dissolution in each case.

After § 143 para. 1 HGB, § 263 AktG, § 65 GmbHG the resolution by the shareholders or by the board of AG / KGaA / GmbH / cooperative in notarially certified form for entry into the Commercial Register to register. The dissolution is therefore a fact that must be registered. With regard to register disclosure, facts that are subject to registration enjoy the protection of confidence in Section 15 (1) and (3) HGB. From the time of dissolution, the companies operate with the company suffix “i. L. "(" in liquidation ") or" i. Abw. ”(“ In progress ”), which informs your business partners about the processing phase.

Continuation of existence

The dissolution merely transfers the companies to the liquidation stage, but does not end their existence. Regardless of the legal form, the dissolution will neither destroy the legal personality nor the capacity to act of a company. Despite being deleted from the commercial register, a GmbH only loses its legal and party status when it is fully terminated. Despite the dissolution, the company remains z. B. able to participate in a process, can sue and be sued. The company remains in the case of dissolution with the company addition. However, the company to be dissolved is no longer aimed at commercial ("advertising") participation in commercial transactions, but rather on the liquidation of its corporate assets , i.e. the sale of assets , settlement of liabilities and distribution of any surplus. The dissolution is therefore only a change in the company's purpose.

Regardless of the legal form, the dissolution regularly forms the first phase of the end of life of a company and initiates the liquidation and full termination phase, which is finally followed by the deletion in the register . These stages can only coincide in exceptional cases, in particular if the company is deleted due to lack of assets by the registry court in accordance with Section 394 of the FamFG ( Section 60 (1) No. 7 GmbHG). The company is only fully terminated after it has been completely wound up and can be deleted from the commercial register.

Transfer to the settlement stage

The dissolution merely transfers the companies and associations to the liquidation stage; a dissolution of the company therefore initiates its liquidation if insolvency proceedings have not been opened against the company's assets. A company is wound up after its dissolution (e.g. Section 264 (1) AktG). The legal provisions that apply depending on the legal form therefore make a sharp distinction between the various phases and regularly assume that the dissolution of a company precedes its liquidation. The registry court therefore has an important task in the context of the completion of a company. In accordance with Section 26 of the FamFG, in the event of a deletion request, it must check whether the dissolution has been entered and the liquidation has actually ended and consequently neither residual assets nor other liquidation measures are required.

Individual evidence

  1. ^ Alfred Hueck, Das Recht der OHG , 1971, p. 340 ff.
  2. ↑ OLG Naumburg, judgment of September 19, 2007, Az .: 2 U 77/07
  3. ↑ Christian Mezger, The complete processing of insolvent trading companies , 2010, p. 72