Shareholder loan

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Shareholder loans (Engl. Shareholder loans ) are loans of a shareholder to the company in which he is involved.

history

In the so-called “Lufttaxi” judgment, the Federal Court of Justice (BGH) first addressed this issue in December 1959. He left it the previous tort reasoning and subsumed it under the company law provisions of §§ 30, 31 Law on Limited Liability Companies (GmbHG) aF present on the GmbHG loopholes were closed in the aftermath of the Supreme Court with a 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 § 32a and § 32b GmbHG (old version), but they 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 capital contributions , amounts paid 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, contributions made by shareholders may not be returned, although this does not apply to the repayment of shareholder loans according to Section 57 (1) sentence 4 AktG. The BGH has decided that a shareholder lending (25% and more) who has an entrepreneurial interest must have his shareholder loans treated like liability capital in the crisis of the AG, analogous to Sections 32a and 32b GmbHG. Even a participation of less than 25%, which is not inconsiderable, can lead to a shareholder loan being classified as an equity-replacing loan if the participation in connection with other circumstances ( supervisory board mandate ) secures the creditor's influence on the company management and he shows a corresponding entrepreneurial interest.

Shareholder loans in the corporate crisis

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 . The BGH took up this issue in December 1959. According to this, the shareholder loans made available to an undercapitalized GmbH would have to be treated like liable equity in the corporate crisis as long as the crisis is not over.

If a corporation or a partnership in which no personally liable partner is a natural person (e.g. GmbH & Co. KG ) is in a corporate crisis and needs additional capital, the shareholders can either bring in additional equity or give the company a loan Provide. If bankruptcy nevertheless occurs , the equity would be lost. When a loan is granted, there is theoretically the possibility that the shareholder could expect repayment in the amount of the insolvency rate . This payment would be borne by the other creditors because their quota falls. 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.

Corporate crisis

According to the constant case law of the BGH, a company crisis is characterized by the fact that a company no longer receives a loan at normal market conditions and would have to be liquidated without the help of the shareholders . In such a situation, the shareholders would have contributed equity to the company as ordinary merchants. The time of the corporate crisis is decisive for the qualification of a shareholder loan as equity. There are two options:

  • If the shareholder loan is granted in an economically good position for the company and repaid in accordance with the contract in an economically good position, the repayment is not objectionable.
  • However, if shareholder loans are granted during a company crisis, they are equity-replacing shareholder loans. This is understood to be shareholder loans that are granted instead of an equity injection that is necessary in the crisis.

The law for the modernization of the GmbH law and for combating abuse (MoMiG) changed the §§ 32a and 32b GmbHG a. F. repealed and the content of the regulation has been moved to the Insolvency Code (InsO) and the Avoidance Act ( § 6 , § 6a AnfG). Since then, all loan repayment claims by shareholders of a company without a natural person as a personally liable partner have been classified as subordinate insolvency claims by law ( Section 39 (1) No. 5, Section 44a , Section 135 , Section 143 InsO). The shareholder's right to segregation ( Section 47 InsO) cannot be asserted during the duration of the insolvency proceedings, but for a maximum of one year from the opening, if the object is of considerable importance for the continuation of the company.

Although shareholder loans are classified as subordinated in the bankruptcy per se, one can subordination still be useful to thereby one -indebtedness be avoided. Claims for which a so-called qualified subordination has been agreed are not to be included in the debts in the context of the overindebtedness test (cf. § 19 Paragraph 2 Clause 2 of the Insolvency Code ).

literature

  • Karl-Josef Faßbender: Cash pooling and capital replacement law in the group (= publications on commercial law. Vol. 174). Duncker & Humblot, Berlin 2004, ISBN 3-428-11645-3 (also: Düsseldorf, University, dissertation, 2004).
  • Wulf Goette , Detlef Kleindiek: Shareholder financing according to MoMiG and equity substitute law in practice. 6., rework. Edition RWS-Verlag Kommunikationforum, Cologne 2010, ISBN 978-3-8145-4317-8 .
  • Christopher Herwig: The shareholder loan law in the corporate group , at the same time: Mannheim, University, dissertation, 2015, Nomos, Baden-Baden 2015, ISBN 978-3-8487-2068-2 .
  • Gottfried Löwisch: Equity replacement law. Commentary on §§ 32 a, 32 b GmbHG. Beck, Munich 2007, ISBN 978-3-406-55823-8 .
  • Nikolaos Vervessos: The Equity Replacement Law . Basics and current developments (= studies on commercial, labor and business law. Vol. 71). Nomos-Verlags-Gesellschaft, Baden-Baden 2001, ISBN 3-7890-7488-8 (At the same time: Cologne, University, dissertation, 2000).
  • Hartwin von Gerkan, Peter Hommelhoff (ed.): Handbook of capital replacement law. RWS-Verlag Kommunikationforum, Cologne 2000, ISBN 3-8145-8084-2 .
  • Kai Zahrte: Financing through cash pooling in the international multi-level group according to the MoMiG (= treatises on German and European company and capital market law. Vol. 43). Duncker & Humblot, Berlin 2010, ISBN 978-3-428-13446-5 (also: Göttingen, University, dissertation, 2010).

Individual evidence

  1. ↑ BGH NJW 1960, 285.
  2. ↑ BGHZ 76, 326, 329 ff.
  3. ↑ BGHZ 90, 370, 379.
  4. ↑ Cecilia Lüneborg: The new right of shareholder loans (= European university studies. Series 2: . Law Vol 5020th). Lang, Frankfurt am Main et al. 2010, ISBN 978-3-631-60063-4 , p. 34 , (also: Passau, Universität, dissertation, 2009).
  5. ^ BGH, judgment of March 26, 1984, Az .: II ZR 171/83: Beton- und Monierbau / WestLB ; ZIP 2005, 1316
  6. ^ RG , judgment of November 16, 1937, JW 1938, 862, 864
  7. ^ RG JW 1939, 353
  8. ^ BGH, judgment of December 14, 1959, Az. II ZR 187/57; BGHZ 31, 258; NJW 1960, 285 - "Air Taxi"
  9. ↑ BGH, judgment of July 13, 1981, Az .: II ZR 256/79 = BGHZ 81. 252