Deletion (register)

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Deletion is the legal term for the cancellation of an existing entry in official registers because the entry in question should no longer be legally effective in the future.

General

Land register , commercial , cooperative , association , partnership , property law registers or other public registers are kept by the competent local courts (“ registry court ”) or special authorities and serve to publicize certain legal relationships. This publicity is created on the one hand by entries in these registers, but on the other hand it is only complete if no longer existing legal relationships and facts as such are also recorded and made known in the register. This is done through deletion.

Request for deletion

In all registers, the so-called application principle prevails, according to which the parties involved also have to submit an application for deletion for registered rights or facts to the responsible register, usually in the correct form. The public registers only become aware of the facts and legal transactions to be deleted when the parties involved request deletion. Intended to be entered in the commercial register procuration of a power of attorney will be deleted, this operation must be notified by the company concerned the commercial register. According to Section 12 of the German Commercial Code (HGB), this is done electronically by means of a publicly certified cancellation request. In the land register, the deletion of rights is particularly formalized, because in addition to the deletion request ( § 13 GBO ), the certified deletion permission of the person affected by the deletion is required ( § 19 , § 29 GBO). If a land charge is therefore to be deleted, the debtor usually submits the request for deletion and the lender must approve, i.e. approve the intended deletion by means of public certification.

In exceptional cases, however, an ex officio deletion takes place (so-called official deletion ; § 394 FamFG ). These are in particular the cases of lack of assets of companies in § 131 Paragraph 2 No. 2 HGB (deletion of the OHG due to lack of assets), § 60 Paragraph 1 No. 7 GmbHG (deletion of the GmbH due to lack of assets), § 289 Paragraph 2 No. 3 AktG (deletion of the KGaA due to lack of assets) and § 81a GenG (deletion of the cooperative due to lack of assets). The lack of assets must be carefully examined by the registry court due to the serious consequences of deletion. The cases provided for in section 31 (2) sentence 2 and section 32 of the German Commercial Code (HGB) are also among the official cancellations. According to § 19 HRV, these deletions must be marked “ex officio”. In the land registry, an entry is to be deleted ex officio if facts or legal relationships indicate that an entry is irrelevant ( Section 87 GBO in conjunction with Section 84 GBO). However, they are recorded anyway and can be found in the directory as deleted

Registry implementation

The deletion is not carried out in the respective register by removing the entry to be deleted, but by a new entry with negative content. This is made visible by underlining the entries that are no longer valid ( Section 16 Paragraph 1 HRV or Section 16 GBV ) and a deletion note. According to Section 11 (1) of the Ordinance on the Register of Associations, the red underlining can be replaced by drawing a horizontal red line above the first and below the last line of the entry and connecting both lines with a red slash running from top left to bottom right. In the land register, too, the deletion takes place by underlining the relevant right and deletion note in red ( Section 17 (2) GBV). Formally, the deletion according to § 46 Paragraph 1 GBO consists not only of the reddening of deleted passages, but also of the deletion note in the change column. In the event of a later inspection, interested parties will also be given information about facts and legal relationships that no longer exist . The red underlining, together with the deletion note, is only to be interpreted as a deletion of an entry.

Effect of the deletion

The publicity effect of a deletion depends on the respective register. The commercial register knows both the declaratory and the constitutive effect of a deletion. In the case of "actual merchants ", the merchant status expires when the business operation is closed, not through deletion in the commercial register (declaratory effect of deletion). On the other hand, a “can merchant” only loses the status of a merchant when it is deleted from the commercial register (constitutive effect of deletion). The power of attorney, in turn, is one of the declaratory entries, this also applies to their deletion. The appointment and revocation of the power of attorney are already constitutively effective. However, if the registered power of attorney is not deleted from the commercial register after revocation, third parties can invoke the continued existence of the power of attorney ( Section 15 (1) HGB) if they were not aware of the revocation. This so-called “positive publicity” has the consequence that the merchant has to accept the transactions carried out by his authorized signatory after revocation of the procuration as long as the expiry of the procuration is not recorded in the commercial register.

In the land registry, deletions only have a constitutive effect. In order to revoke a land register right, the declaration of the person entitled and the deletion of the right in the land register are required in terms of material law in accordance with Section 875 (1) BGB . According to § 11 No. 7 GBV in column 10 of Section III of the land register, the registered liens are formally and legally deleted. Formally, according to Section 46 (1) GBO , the deletion consists not only of the reddening of deleted passages, but also of the deletion note in the change column. Only the red underlining of the deleted passages together with the deletion note lead to the cancellation of the right concerned. Deletions in the land register are recorded by public belief , because deleted rights are assumed (refutable) that they no longer exist ( § 891 BGB).

The waiver of a building load by the building supervisory authority only becomes effective after the deletion of the building load in the building load register according to § 83 Para. 4 MBO .

Deletion of a company

It is complicated for companies to leave the legal market. It takes place in three stages, namely the dissolution , liquidation and only then their deletion. The deletion of an association or a company in the respective register has serious consequences for commercial transactions, because due to the "positive publicity" of the register, the information seeker can trust that a deleted company no longer exists because the deletion for legal transactions gives the appearance of Termination of a society arises. However, only facts that are subject to registration participate in the “positive publicity”. The dissolution is compulsory in the case of “non-traders” ( Section 31 (2) sentence 1 HGB), corporations ( Section 65 (1) GmbHG, Section 273 (1) AktG) and cooperatives ( Section 82 (1) GenG). If a company of these legal forms has been deleted and the deletion has been announced, although the processing has not yet been completed, this is the incorrect announcement of a fact that is subject to registration ( Section 15 (3) HGB). A third party can invoke a fact that has been made falsely known against the person in whose affairs the fact was to be entered, whereby the third party, according to the prevailing opinion, has the right to choose whether he invokes the content of the announcement or the true legal situation. In the case of commercial partnerships, a deletion in the commercial register is not required for the full termination to occur because the complete settlement leads to the termination.

The liquidation is ended when no further resolution measures are required. The termination of the winding-up procedure is a prerequisite for the registration of the expiry of the company in the commercial register and thus in principle also the complete termination of a company as a legal entity. The company is then fully terminated when the termination of the liquidation and the deletion of the company are entered in the commercial register. Despite being deleted from the commercial register, a GmbH only loses its legal and party status when it is fully terminated. The full termination does not take place through the deletion in the register, but only through the completion of its processing. The deletion is thus the last stage in a company's termination process. In the case of partnerships, no statutory regulation is provided because creditor protection provisions are not required due to the full liability function. According to Section 131, Paragraph 3, Clause 1, No. 1 of the German Commercial Code (HGB), a personally liable partner does not leave until the OHG or KG is fully terminated ; OHG and KG expire when they are fully terminated; deletion from the Commercial Register is only of declaratory significance; therefore u. a. after completion of the transaction to register the expiry of the company in the commercial register.

According to the OLG Celle , the appearance of the termination of a company caused by deletion applies not only if the deleted company is actually without assets, but also if the company is deleted due to lack of assets, but in fact still has assets. If the shareholders wanted to continue a company that still had assets and had been deleted, a new start would only be possible through a new foundation. The continuation of a company that has been deleted due to lack of assets in accordance with Section 60 (1) No. 7 GmbHG is therefore not permitted without exception. That is why the registry court has an important task in the context of the complete termination of a company. According to § 26 FamFG, it has to carefully check whether the liquidation has actually ended and consequently neither residual assets nor other liquidation measures are required.

Limitation periods

As an exception, the deletion in the commercial register also triggers the start of preclusive periods, because the liability of the exiting general partner is limited to a grace period of five years after its deletion in the commercial register in accordance with Section 160 (1) HGB. This also applies to the termination of a domination or profit and loss transfer agreement , provided that creditors are entitled to a security deposit and report within 6 months of the announcement ( Section 303 (1) AktG).

Repayment

Some registers use the term deletion instead of deletion or see deletion as the preliminary stage to permanent deletion. Thus, in the driving ability Register registered points only after a year-long demurrage period , permanently deleted, which follows the repayment period from the register. The various repayment periods are regulated in Section 29 of the StVG .

See also

Individual evidence

  1. Max Hachenburg / Peter Ulmer, GmbH Law , 1997, p. 306.
  2. OLG Naumburg , judgment of September 19, 2007, Az. 2 U 77/07.
  3. ^ BGH WM 1982, 974.
  4. OLG Celle, judgment of January 3, 2008, Az. 9 W 124/07.
  5. Christian Mezger, The complete processing of insolvent trading companies , 2010, p. 72.
  6. Entries are kept for another year after the expiry of the repayment period in accordance with Section 29 Paragraph 6 Clause 2 StVG.