Equity substitute loan
Equity-replacing loans are under company law shareholder loans from a shareholder to his company, which in the event of the insolvency of this company are reclassified by law as equity .
history
In November 1937, the Reichsgericht decided that the financing of an undercapitalized GmbH with shareholder loans in the event of damage to other creditors resulting therefrom was immoral within the meaning of Section 826 of the German Civil Code (BGB ) and that such claims should not be registered in the bankruptcy table. Rather, shareholder loans should be treated as what they actually are: namely equity. In December 1959, the BGH took up this issue in its famous “Lufttaxi” ruling; In doing so, however, he abandoned the tort law argumentation and subsumed them under company law provisions of §§ 30, 31 GmbHG old version. According to this, the shareholder loans made available to an undercapitalized GmbH would have to be treated as liable equity in the corporate crisis as long as the crisis is not over. The legal loopholes in the GmbHG were subsequently closed by the BGH with a large number of judgments.
Above all, the BGH applied its established rules to the GmbH & Co. KG , to guarantees from the shareholder for third-party loans and to leaving shareholder loans in the crisis. He dealt extensively with the concept of the corporate crisis in March 1980. It was not until July 1980 that the corresponding provisions were inserted into the GmbH Act with Sections 32a and 32b GmbHG (old version), but these still contained gaps. The BGH elevated the equity-replacing loan to a legal institution and resolved the problems appropriately.
Affected legal forms
In the case of partnerships, there can be no mutual claims and debts between fully liable partners and their company , including no shareholder loans . Amounts paid by the partner to his partnership are contributions , amounts received by the partnership are withdrawals . If - not fully liable - limited partners have paid in their contribution in full, additional amounts can be made available as shareholder loans.
In the case of corporations , a partner can try to create a theoretical repayment option like normal creditors by drafting an appropriate contract . For this purpose, he grants his company a loan instead of equity, which is subject to the loan provisions of § § 488 ff. BGB and thus includes a repayment obligation by the debtor. This repayment obligation may also be fulfilled by the debtor company as long as it is not in a corporate crisis. Shareholder loans due may therefore be repaid to the shareholders outside of a corporate crisis , just like normal corporate liabilities, with which the shareholder loans compete for repayment.
Shareholder loans are also possible with the stock corporation and the KGaA . According to section 57 (1) sentence 1 AktG, the contributions made by the shareholders may not be returned, although this does not apply to the repayment of shareholder loans according to section 57 (1) sentence 4 AktG. In March 1984, the BGH decided for the stock corporation that a shareholder lending (25% and more) with entrepreneurial interests must have his shareholder loans treated like liability capital in the crisis of the AG analogous to Sections 32a and 32b GmbHG. Even a not inconsiderable stake below 25% can, according to this judgment, result in a shareholder loan being classified as an equity-replacing loan if the stake in connection with other circumstances ( supervisory board mandate ) gives the creditor an influence on the company management and he secures a corresponding entrepreneurial interest reveals.
New legal regulation
The MoMiG , which came into force on November 1, 2008 , abolished the statutory provisions on equity-replacing loans, in particular § 32a and § 32b GmbHG , for future cases. In accordance with the will of the legislature, the previous case law rules on equity-replacing loans ( section 30 , section 31 GmbHG analogous) have been abolished (cf. expressly section 30 (1) sentence 3 GmbHG). The legal institution of the equity-replacing loan therefore no longer exists for future cases. However, the rules of case law should still apply to those old cases in which both the granting and repayment of the shareholder loan took place before November 1, 2008. After regulated in Art. 103d EGInsO favourability the former provisions also zoom pull arose prior to 1 November 2008, when she was more favorable to the opposing party as the new legal situation. The effects of the change in the law cannot yet be conclusively foreseen.
As a substitute there are now rules for the treatment of shareholder loans and the contestability of their repayments or collateral in the Insolvency Code and the Avoidance Act . According to Section 39 (1) No. 5, Section 19 (2) and Section 135 InsO, since then, by law, loan repayment claims by shareholders of a company without a natural person as a personally liable partner have been classified as subordinate insolvency claims, regardless of their equity substitute character. Shareholder loans granted by non- managing partners with a participation quota of no more than 10% are excluded from this regulation .
background
If a corporation or a partnership in which no personally liable partner is a natural person (e.g. GmbH & Co. KG ) is in the corporate crisis and needs additional capital, the shareholders can either bring this in as additional equity or the Provide the company with outside capital in the form of a loan ( shareholder loan ). However, if bankruptcy does occur , the equity contributed would be lost from the perspective of the shareholder. In the event of a loan being granted that triggers a repayment obligation according to Section 488 of the German Civil Code , however, there could theoretically be the possibility that he is in the same rank as other bankruptcy creditors, so that he could expect repayment in the amount of the insolvency rate . This payment would be borne by the other creditors , reducing their quota. Furthermore, if it becomes apparent that bankruptcy is inevitable, the shareholder could, due to his knowledge advantage and his influence on the management, have his loan repaid from the company's remaining funds and thus damage the other creditors.
Bibliography
- Karl-Josef Fassbender: Cash pooling and capital replacement rights in the group . ISBN 3-428-11645-3 .
- Wulf Goette, Detlef Kleindiek: Equity replacement law in practice - according to the MoMiG . ISBN 978-3-8145-4317-8 .
- Gottfried Löwisch: Equity replacement law . ISBN 978-3-406-55823-8 .
- Nikolaos Vervessos: The Equity Replacement Law . ISBN 978-3-7890-7488-2 .
- Hartwig von Gerkan, Peter Hommelhoff: Handbook of capital replacement law . ISBN 978-3-8145-8084-5 .
- Zahrte, Kai: Financing through cash pooling in an international multi-level group according to MoMiG . ISBN 978-3-428-13446-5 .
Individual evidence
- ^ RG, judgment of November 16, 1937, JW 1938, 862, 864
- ^ RG JW 1939, 353
- ^ BGH, judgment of December 14, 1959, Az. II ZR 187/57; BGHZ 31, 258; NJW 1960, 285 - "Air Taxi"
- ↑ BGHZ 76, 326, 329 ff.
- ↑ BGHZ 90, 370, 379
- ↑ Cecilia Lüneborg: The new right of shareholder loans . 2010, p. 34
- ^ BGH, judgment of March 26, 1984, Az .: II ZR 171/83: Beton- und Monierbau / WestLB ; ZIP 2005, 1316
