Direct liability

Strict liability exists in company law if, in certain cases , the shareholders of a corporation have to be personally, indefinitely and jointly and severally liable to the company's creditors with their private assets for the company's liabilities if the company's assets are insufficient.

General

Strict liability is not regulated by law, but was developed as a legal institution of case law and legal literature. This breach of liability leads to a breach of the basic rule of the separation principle . The separation principle means the separation between private and corporate assets. According to Section 1 Paragraph 1 Clause 2 AktG and Section 13 Paragraph 2 GmbHG , the creditors of the stock corporation and the GmbH are only liable for their corporate assets. However, if the company's assets are not sufficient to repay the company's debts, there is usually no liability of the shareholder with his private assets. This is the main characteristic of corporations.

history

However, this principle of separation does not apply without restriction to corporations. The Reichsgericht had already dealt with the legal institution of direct liability for the first time in June 1920. It was not until 1955 that Rolf Serick presented the dogmatic foundations of breaking through the principle of separation. In January 1956, the BGH favored the principle of separation as a basic rule and demanded that the legal entity should be clearly separated from its members. However, in this judgment he made it clear that “the legal form of the legal person must not be ignored lightly and unreservedly.” A deviation from the basic rule of the separation principle should only be made under serious points of view. In the "Autokran" judgment of September 1985, the shareholders were not allowed to invoke the legal independence of the legal entity, but had to be liable with their private assets analogous to Section 105 (1) and Section 128 of the HGB . In the "Bremer Vulkan" decision of September 2001 and in later cases, the "abuse of legal person" led to the "loss of limitation of liability".

Paradigm shift

In July 2007, however, a paradigm shift occurred at the BGH when it first pursued the principle of internal liability towards society in the “Trihotel” judgment. With this ruling, the BGH abandoned the concept of abuse of the legal form leading to full liability and justified the shareholder's liability to destroy the existence of the company solely with Section 826 of the German Civil Code (BGB) as a special case group of immoral, deliberate damage . He announced that in the future, too, abusive interference with company assets would no longer be sanctioned with direct liability, but that violations of the earmarking of company assets would be subject to the tortious compensation norm of § 826 BGB. However, the BGH considers external liability to be permissible in cases of amalgamation of assets and in special cases of interference that destroys existence.

species

In the case of penetration liability, a distinction is made between false and real penetration liability.

There is spurious direct liability when shareholders provide loan security through sureties or guarantees for loans from third parties ( e.g. bank loans to the company) (most frequently found in practice).

In the case of genuine direct liability, the shareholders of the company that is actually exclusively liable are deprived of the liability privilege of a lack of personal liability, and they are liable like the shareholders of a partnership without limitation of liability. In the Anglo-American legal system one speaks of “lifting the corporate veil” (lifting the veil of society ).

causes

Penetration liability can be triggered by the following causes:

Material undercapitalization : it occurs when the required capital requirement is not covered either by shareholder loans or by real outside capital .

Mixing of assets : a demarcation between company and private assets of the partners is obscured by opaque bookkeeping or in some other way; it is impossible for the creditor to distinguish between corporate and private assets. Company assets are shifted to the private assets of the shareholders or group companies.

Mixing of spheres : if the separation of two legal entities is not sufficiently clear to the outside world because there is no clear demarcation between the social sphere and other areas (in particular the private sphere of the shareholders or personal union between group companies). The mixing of spheres only leads to liability if it results in a mix of assets.

Abuse of legal form : here the legal form of the legal person is abused or used contrary to the purpose of the legal system, so that the separation principle is invalidated.

Individual questions on this topic are legally controversial.

Legal consequences

This paradigm shift only resulted in a change in the basis for claims (from company law basis to tortious damages). However , this has not changed anything in terms of economic direct liability in special cases of under-capitalization . If penetration liability is permitted, the shareholder is exceptionally personally, directly and unlimitedly liable according to Section 105 (1) and Section 128 of the German Commercial Code . The facts of capital maintenance (§ § 57 , § 62 AktG, § 30 , § 31 GmbHG) take precedence and replace, where they can intervene, the direct liability.