GmbH managing director liability

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Under Managing liability is liability of the GmbH - managing director for his breach of duty to understand.

Liability to society

While a shareholder of a GmbH can largely stay out of the management of the GmbH, the managing director is the body of the company that is responsible for managing the business. When fulfilling this obligation, the managing director has to "exercise the care of a prudent businessman", Section 43 (1) GmbHG (see also proper management ). In the event of a breach of these obligations, the managing director is only liable to the company, Section 43 (2) GmbHG. If the company has several managing directors, they are generally jointly responsible for managing the company. Even an internal order of responsibility for the managing directors (departmental responsibility) does not fundamentally abolish the principle of the overall responsibility of the managing directors, but can in individual cases limit the liability of the individual managing director for damage in the department that has not been assigned to him. According to the case law of the Federal Court of Justice, such an agreement of departmental responsibility between the managing directors can also be made orally.

In addition, the managing director is also liable according to § 64 GmbHG for all payments made after the occurrence of a reason for insolvency (insolvency or over-indebtedness). This only does not apply if the payments involved are "compatible with the diligence of a prudent businessman" even after this point in time. As a rule, this is only the case for those payments the failure of which would lead to serious consequential damage even in the event of bankruptcy (e.g. switching off the electricity in a cold store with perishable goods, etc.). The managing director's liability for payments after the bankruptcy has reached maturity (depending on the individual case) may even apply if overdue taxes and duties are paid or material is acquired to continue the unprofitable business operations.

The EU restructuring directive to be implemented by July 2019 provides in Article 19 that in the event of probable insolvency, the managing directors must not only take into account the interests of the shareholders, but also the interests of the creditors and other parties involved. The scope of this regulation and its implementation by the German legislator have not yet been clarified.

Third Party Liability

He is liable to outsiders

If the company has several managing directors, the principle of overall responsibility can also establish liability for all managing directors. If one of the managing directors violates a legal prohibition, liability to the other managing directors can arise if they could have recognized the violation of the law of their co-managing director and did not undertake what is legally possible and reasonable for them to end the violation of the legal interests of third parties. In the external relationship, an internal order of responsibility among the managing directors does not release the non-departmental managing directors from monitoring the departmental managing director.

Liability of the partner-manager

When it comes to the question of the liability of a shareholder-manager, both levels (shareholder and manager level) must be considered separately. A partner is generally not liable for the liabilities of the GmbH. In this respect, liability is limited ( Section 13 GmbHG). A shareholder cannot, however, invoke his limited liability ( Section 13 GmbHG) if he is also a manager and has neglected his managerial duties.

Liability of the "actual managing director"

See main article Actual Managing Director .

Protection and reduction of liability

The manager 's liability can - at least partially - be covered by a so-called D&O insurance . In addition to security, the managing director also has a number of options to reduce liability through his employment contract (e.g. through liability clauses , D&O procurement clause ) as well as through relief in the shareholders' meeting.

literature

  • Thomas Ratka / Roman Alexander Rauter: Handbook of managing director liability - with executive liability , 2nd exp. Ed., Facultas.wuv 2011, ISBN 978-3-7089-0705-5
  • Ralf Ek: The liability of the GmbH managing director , 1st edition, Munich 2011, Verlag CH Beck, ISBN 978-3-406-61181-0
  • Ingeborg Haas: The tax liability of the GmbH managing director. Gabler, Wiesbaden 2010. ISBN 978-3-8349-2524-4
  • Gerd Krieger / Uwe. H Schneider: Handbook of Manager Liability - Areas of Risk and Consequences of Liability for Management Board, Managing Director, Supervisory Board , 2007
  • Karl Sikora: The GmbH managing director in the corporate crisis - obligations and liability risks in the stage of material insolvency , NWB 2007, 2583–2602
  • Robert Weber / Florian Brügel: The Liability of Management in the Corporate Crisis: Insolvency, Preservation of Capital and Existence-Destroying Intervention , DB 2004, 1923–1928
  • Gerhard Bruschke: The liability of the "managing director" . Deutsche Steuer-Zeitung (DStZ) 2012, p. 407
  • Hermann Pump / Herbert Fittkau: Avoiding the liability of the GmbH managing director for tax debts of the GmbH . Erich Schmidt, Berlin 2012, ISBN 978-3-503-13666-7
  • Günter Kahlert, Representative Liability for Tax Debts, especially in the Corporate Crisis , Zeitschrift für Wirtschaftsrecht (ZIP) 2009, 2368

Individual evidence

  1. ↑ Federal Court of Justice for Civil Matters: Judgment of January 9, 2001 . In: file number VI ZR 407/99 .
  2. ↑ BGH: II ZR 11/17 . In: judgment of . November 6, 2018.
  3. ↑ Federal Court for Civil Matters : Judgment of the Federal Court of Justice of January 25, 2011, file number II ZR 169/09 with reference to established case law .
  4. ^ Federal Court of Justice for Civil Matters : Judgment of January 26, 2016, file number II ZR 394/13 .
  5. ↑ Düsseldorf Higher Regional Court: judgment, I-15 U 66/17. January 11, 2018, accessed July 24, 2018 .
  6. ^ Jens Nyenhuis: Liability of managing directors in the event of patent and copyright infringements. Retrieved July 24, 2018 .
  7. ↑ D&O procurement clause. Retrieved January 1, 2019 .