Existential destruction liability
As Existenzvernichtungshaftung liability (liability for an economically destructive interference ) is defined as a legal concept in German law, according to which the shareholders of a corporation exceptionally on their invested capital addition for indebtedness liable to the company.
In principle, the assets of the company are separated from the assets of the shareholders ( Section 13 (2 ) GmbHG ). Only the company's assets, not the shareholders' assets, are liable for the company's debts . The company's assets serve primarily to satisfy the company's creditors; It is, however, in normal business uses that go creditors in the bankruptcy case of empty when there is nothing to bring to the company.
If, on the other hand, the shareholders are to be accused of "improper, leading to insolvency of the GmbH or deepening it without compensation in the company's assets serving the purpose of primarily satisfying the company's creditors", the shareholders must provide the company with the means necessary to meet its liabilities to settle. This legal consequence is of particular practical importance if a subsidiary becomes insolvent within a group , but the parent company still has assets.
A limited obligation of the shareholders to refund payments from a GmbH is standardized in Sections 30 and 31 GmbHG. The Federal Court of Justice (BGH) developed the comprehensive legal form of liability for existential destruction in the judgment “ Bremer Vulkan ” in 2001 and initially based it on the basis of claims in Section 823 (2) BGB , Section 266 StGB .
He assumed that the partner had an obligation to safeguard the financial interests of the corporation - even if he owned the entire corporation alone. With the judgment “Trihotel”, the BGH has further developed the existence destruction liability and clarified that the correct basis for claims is § 826 BGB. As a result, he has partly given up his case law on liability enforcement due to the destruction of existence in favor of a tort law solution approach in the internal relationship.
Furthermore, the judgment contains the statement that, contrary to the previous postulate in the “KBV” judgment, the liability for the destruction of existence is purely internal liability and not liability through enforcement and that only the insolvency administrator, not the individual creditor, can assert the resulting claim.
The new line followed by the BGH in the “Trihotel” judgment is predominantly referred to as “consistent” in legal literature and has met with approval.
Individual evidence
- ↑ in detail here: Spindler in Bamberger / Roth (Hrsg.), BeckOK BGB, § 826 BGB marg. 57 mwN
- ↑ BGH, judgment of September 17, 2001, “Bremer Vulkan” on lexetius.com, BGHZ 149, 10.
- ↑ BGH, judgment of July 16, 2007, “Trihotel” on lexetius.com, intended for publication in BGHZ.
- ^ BGH, judgment of July 16, 2007, Az. II ZR 3/04, "Trihotel", BGHZ 173, 246.
- ^ BGH, judgment of June 24, 2002, “Kindl Backwaren Vertrieb (KBV)” on lexetius.com, BGHZ 151, 181.
