Caduction
The cessation denotes a compulsory exclusion of shareholders of a GmbH or an AG who are in arrears with their payments on their capital participation on shares or capital contributions .
If a shareholder in a stock corporation or a partner in a limited liability company has not made the payments for his contribution on time and a grace period has expired without success, the shareholder of his shares or the partner of his business share and the partial payments made can be declared forfeit.
In Germany, this is regulated in Section 21 GmbHG and Section 64 AktG .
Caduation at the GmbH
In § 21 GmbHG the caduction is regulated as follows:
- (1) In the event of delayed payment, the defaulting shareholder may be asked to pay again within a period of grace to be determined under threat of his exclusion with the share on which the payment is to be made. The request is made by registered letter. The grace period must be at least one month.
- (2) After the deadline has expired without success, the defaulting shareholder is to be declared forfeit of his business share and the partial payments made in favor of the company. The declaration is made by registered letter.
- (3) Because of the loss suffered by the company on the outstanding amount or the amounts of the capital contribution later claimed on the business share, the excluded partner remains under arrest. For a contribution obligation not fulfilled by the excluded partner, the company is also liable for the last and any previous legal predecessor of the excluded party under the conditions of § 22 GmbHG.
Consequences of late payment
Section 63 AktG regulates the consequences of late payment:
- (1) The shareholders have to pay in the deposits at the request of the Management Board. Unless the articles of association stipulate otherwise, the request must be published in the company gazette.
- (2) Shareholders who do not pay in the requested amount on time have to pay interest of five percent for the year from the due date on. The assertion of further damage is not excluded.
- (3) In the event of late payment, the articles of association can stipulate contractual penalties.
Exclusion of defaulting shareholders
According to Section 64 AktG, the following applies:
- (1) Shareholders who do not pay in the requested amount on time can be set a grace period with the threat that they will be declared forfeit after the deadline for their shares and the payments made.
- (2) The grace period must be published three times in the company gazettes. The first announcement must be made at least three months, the last at least one month before the deadline. There must be a period of at least three weeks between the individual announcements. If the transfer of the shares is subject to the approval of the company, a one-off individual request to the defaulting shareholders is sufficient instead of the public announcement; a grace period of at least one month from receipt of the request must be granted.
- (3) Shareholders who still do not pay the requested amount will be declared forfeited by a notice in the company gazette of their shares and the payments made in favor of the company. In the announcement, the shares that have been declared forfeited must be indicated with their distinguishing features.
- (4) New documents are issued in place of the old ones; In addition to the partial payments made, they must indicate the amount in arrears. The excluded shareholder is liable for the failure of the company to this amount or to the amounts claimed later.
The exclusion of the affected shareholders can be enforced either through a court announcement procedure or out of court through a declaration of nullity, which can be pronounced by the company.
See also
Web links
Individual evidence
- ^ Walter Brünig: Kaduzierung Steuer-Taschenlexikon für die GmbH, S. 146-147
