Law to modernize GmbH law and to combat abuse

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Basic data
Title: Law to modernize GmbH law and to combat abuse
Abbreviation: MoMiG
Type: Federal law
Scope: Federal Republic of Germany
Legal matter: Corporate law
Issued on: October 23, 2008 ( Federal Law Gazette I p. 2026 )
Entry into force on: November 1, 2008
GESTA : C114
Please note the note on the applicable legal version.

The law on the modernization of GmbH law and combating abuse ( MoMiG ) of October 23, 2008 is a pure amending law with which the German GmbH law has been fundamentally reformed. The main objectives of the law are:

  1. Accelerate and simplify business start-ups
  2. Increasing the attractiveness of the GmbH as a legal form
  3. Combating Abuse

Content

Accelerate and simplify business start-ups

The establishment of a GmbH has been made easier. The idea was to reduce the minimum share capital from 25,000 euros to 10,000 euros in order to overcome the financial hurdle when setting up a company. However, this was rejected.

On the other hand, it is now possible to found a so-called entrepreneurial company (limited liability) ("UG (limited liability)", Section 5a GmbHG ), which can be founded with share capital of between EUR 1 and EUR 24,999. The establishment of a UG is cost- privileged according to § 41d KostO , provided that it is founded in a simplified procedure according to § 2 Paragraph 1a GmbHG.

Clarity will be provided with regard to the hidden contribution in kind . It is legally regulated for the first time after the Federal Court of Justice alone had previously stipulated the requirements and legal consequences of the hidden contribution in kind . The MoMiG adopts the definition of the hidden contribution in kind as it has been developed by case law, but fundamentally regulates the legal consequences. A hidden contribution in kind exists when the shareholder makes a formal contribution in cash , but from an economic point of view brings something in kind into the company. Example: The partner pays the contribution. Then he sells a car to the GmbH. The contribution flows back to the shareholder as a purchase price. So far, the BGH has stipulated that the obligation and disposition transactions are void when a hidden contribution in kind is made - with the result that the shareholder had to make his cash contribution again (usually to the insolvency administrator ). The MoMiG weakens the very tough nullity sanctions. Concealed contributions in kind are still not permitted. However, they will be offset against the company's cash contribution claims against the shareholder.

However, this will only be taken into account when the company is entered in the commercial register. Before signing the registration, the managing director assures that the deposit payments have been made (properly). This assurance from the manager is then wrong. That means, the managing director is liable to prosecution according to § 82 GmbHG. In addition, the registry judge can reject the entry of such a GmbH in the commercial register ( Section 9c GmbHG).

Another simplifying point is the possibility of establishing a GmbH or UG in a simplified procedure ( Section 2 (1a) GmbHG). The legislature provides two sample protocols for this in the appendix to the GmbHG - one for one-person formation, the other for multi-person formation. If the shareholders take over this contract without amendment, the notarial certification of the partnership agreement is still required, but this is more cost-effective if a UG is founded.

Increasing the attractiveness of the GmbH as a legal form

Due to the freedom of establishment within the European Union , there has been an alleged competition between the various types of company provided for by the different legal systems of the member states. The various types of company existing in the Union are - on paper - in direct competition with one another. The English limited company was particularly interesting for entrepreneurs without capital . As a result, the legislature considered it necessary to improve the attractiveness of the German GmbH.

It is now regulated in the law that the company's administrative seat can be freely chosen. It is now possible to set up a GmbH with its registered office in Germany under German law, which has its operative business and the seat of administration exclusively abroad. The seat of the statutes and the seat of administration may differ. However, a domestic business address is still required.

The possibility of founding a company with a share capital of less than 25,000 euros is also aimed at increasing the attractiveness of the GmbH compared to the English Limited. This company must use the legal form suffix "Unternehmergesellschaft (limited liability)", but is largely subject to the same rules as the regular GmbH. Deviations (examples): only cash foundations possible, no contributions in kind. The share capital must be paid in in full when the company is founded, but there is an obligation to transfer a quarter of the surplus to retained earnings annually until the share capital of EUR 25,000 is reached.

A bona fide acquisition of shares should lead to the fact that acquirers of shares may trust that the sold shares actually belong to the seller. A buyer can acquire shares in good faith if the seller has been entered in the list of shareholders in the commercial register for at least three years and without objection ( Section 16 (3) GmbHG). If it has been registered for less than three years, a purchase in good faith can only be considered if the error is attributable to the person actually entitled.

Another important point is the regulation on so-called cash pooling . The new law responds to rulings by the Federal Court of Justice and expressly allows cash pooling if the company's claim for restitution is full and liquid (due at any time) ( Section 30 (1) sentence 2 GmbHG). Paying back and forth is also permitted in the context of raising capital. This means that the company may repay the investment made by the shareholder if the company's claim to repayment is full and liquid. If he is not, the managing director is liable ( § 43 GmbHG). He is also liable if he pays out and later does not terminate the loan without notice according to § 490 BGB and demands it back from the shareholder if his financial situation deteriorates. Overall, the MoMiG significantly increases the liability risks for managing directors of GmbHs.

Combating Abuse

In order to combat abuse, future companies must fulfill further obligations: In the future, a domestic business address must be specified in the commercial register at which the GmbH can be reached ( Section 8 (4) GmbHG). Creditors of the GmbH can deliver documents and make declarations of intent to this address. If delivery (physically) to the specified business address is not possible, this will be sanctioned by public delivery . In this way, legally binding default judgments can be obtained against the company without it knowing. So-called company undertakers should be put to an end, especially since such judgments according to the EuGVVO are also enforced abroad.

The area of ​​combating abuse also includes the aspect of liability of the shareholders in the event of lack of leadership (= when there is no (longer) managing director). In the event of over-indebtedness, the shareholders are obliged to file for insolvency ( Section 15a (3 ) InsO ). By shifting the obligation to file for insolvency from the special laws to the InsO, the offense of delaying insolvency ( Section 15a Para. 4 and 5 InsO) is now also applicable to managing directors and shareholders of non-German companies. This was previously not possible due to the prohibition of analogy under criminal law . In addition, in the event that the GmbH is not managed, the shareholders are passively authorized to receive ( Section 35 (1) GmbHG) for declarations of intent.

The catalog of obstacles to appointment for managing directors has been expanded ( Section 6 (2) GmbHG). Shareholders who appoint unsuitable (inhabile) managing directors are liable (para. 5) of the company for breaches of duty by this managing director.

Come into effect

The law came into force on November 1, 2008.

literature

Individual evidence

  1. duslaw.eu: Share capital of the GmbH remains at 25 T € ( Memento from January 24, 2010 in the Internet Archive )
  2. from 2013 regulated in Section 105 (6) GNotKG
  3. a b BGBl. 2008 I p. 2026 (PDF; 177 kB)

Web links