Liquidation (of Latin liquidāre , liquefy ') is the management of a company through the sale of all assets , the payment of all debts and the distribution of the remaining funds to shareholders, or another in the social contract particular institution. The aim of the liquidation is to end the company.
From the corporate law perspective, the liquidation or winding up is the beginning of the period after the dissolution of the company or association through which they are actually led to lack of assets in order to enable their existence to be fully terminated by deletion from the register . It is therefore the second phase of the termination of a company or association, preceded by the dissolution, regardless of the legal form, followed by the deletion in the register. The liquidation phase only takes place if a (non- insolvent ) company is to be regularly terminated or an insolvency application has been rejected due to insufficient assets . The liquidation in the context of insolvency proceedings, however, follows the complex special norms of the insolvency code .
The processing is carried out by the members of the board of directors and managing directors in accordance with the statutory provisions , but another person can be designated as the processor in the articles of association or by resolution of the general meeting ( (1) and (2) AktG, ff. HGB for partnerships ) . The persons entrusted with the liquidation of an association or a trading company under German law (e.g. under HGB , GmbHG , AktG or BGB ) are also called liquidators . In Switzerland , the persons entrusted with the execution of a liquidation settlement bear the same name . The liquidators represent the company in and out of court ( (1) AktG). Similar rules apply to the GmbH ( Paragraph 1 GmbHG). The liquidators are entered in the commercial register of trading companies .
It is the task of the liquidators to generate the largest possible distribution mass in the interests of the creditors as well as the shareholders and partners . In the case of an open liquidation , the liquidators must publicly announce their intention to liquidate, terminate ongoing business, collect the claims, convert the remaining assets into cash and call on the creditors to call on them to report ( (2) GmbHG). As of this announcement, the period for the blocking year begins ( (1) GmbHG), before its expiry and complete debt repayment, the remaining company assets may not be distributed to the shareholders; In the event of a violation, the liquidators are liable with their private assets (protection of creditors ). Before September 1, 2009, this notification had to be made three more times before the lockout year could begin.
The liquidator is an organ of the company and in this function is liable according to the general rules. For example, he has to fulfill the tax obligations for the liquidation company.
Execution of the liquidation
Liquidation also includes the sale of the company as a whole or in operational parts of the company . All business related to liquidation may be carried out and, if necessary, new contracts may also be concluded. During the liquidation phase, the companies carry a company suffix that characterizes the liquidation process ("i. L." for "in liquidation" or "i. A." / "I. Dev." For "in liquidation"; e.g. para . 5 GmbHG). The purpose and content of the liquidation is the termination of current business with the aim of distributing the remaining, exclusively in money, assets to the shareholders after all liabilities have been fulfilled ( GmbHG). The remaining assets to be distributed minus the liquidation costs are referred to as liquidation proceeds.
End of liquidation
After the liquidation proceeds have been distributed to the shareholders and the final invoice has been drawn up, the liquidators must register the end of the liquidation with the commercial register. With the registration, a copy of the notice of the declaration of dissolution with a call for creditors must be submitted to the court. The company is thus ended and will be deleted from the commercial register ( AktG, (1) GmbHG). After its termination, the liquidation generally leads to the loss of legal capacity and party status , i.e. a corporation no longer has assets and is deleted from the commercial register. The liquidation carried out in the course of a pending lawsuit then justifies the loss of the right to be a party if a company has ended completely, it has therefore been deleted from the commercial register, there are no more assets and at the same time - in a passive process - the access object for the plaintiff no longer applies. In terms of tax law, however, a partnership is to be regarded as material and legal as long as trade tax claims are asserted against it ; As a result, it is considered to exist under tax law for the duration of the legal dispute over the trade tax assessment notice. 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 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 with their full termination, the deletion in the commercial register only has declaratory significance.
The end of the liquidation moves the company to the stage of its ability to be deleted, which must be carefully checked by the registry court in accordance with FamFG. The registry court has to determine ex officio whether the settlement has actually ended and consequently neither residual assets nor other settlement measures are required. In particular, the court has to start the necessary investigations ex officio. B. send the tax office to comment on whether the liquidation balance sheet has been submitted and the tax assessment has been completed. If concerns or objections are raised, the entry of the deletion will be postponed until it has been fully completed. If there are no concerns, the registry court will enter the expiry ("The liquidation has ended. The company has been deleted"). The termination occurs with deletion in the register ( GmbHG).
The deletion in the commercial register does not affect the party ability and litigation ability as long as the legal relationships of a partnership with third parties have not yet been settled. The downfall of the party ability and litigation ability of a partnership presupposes their complete termination. The deletion only has a declaratory effect, so that the lack of active assets is decisive for the complete termination. If the articles of association of a GbR stipulate that after the departure of a partner, the company will be continued among the remaining partners, and the penultimate partner leaves the GbR, this leads to the complete termination of the company without liquidation.
The company ceases to exist when it is deleted from the commercial register. Only in exceptional cases can the three stages of dissolution-liquidation-complete termination coincide, especially if the company is deleted due to lack of assets by the registry court in accordance with AG , GmbH and KGaA ) material and legal in this provision. The deletion leads to the cessation of a legal person . The lack of assets must also be carefully checked by the registry court because of the serious consequences of deletion.(1) FamFG. A deletion ex officio due to lack of assets is for all corporations (
If it subsequently turns out that there are still undiscovered assets, a supplementary liquidation must be carried out.
- Federal Act on Debt Collection and Bankruptcy of April 11, 1889 (SchKG; SR 281.1)
- "Liquidation of a GmbH" on the website of the Frankfurt Chamber of Commerce
- Dissolution, liquidation and deletion of a GmbH , IHK Region Stuttgart, accessed on May 24, 2012
- Leibner / Pump, The tax obligations of a liquidator of a GmbH, GmbHR 2003, 996.
- OLG Rostock, judgment of June 28, 2001, Az .: 1 U 203/99 in the case of a GmbH
- BFH, judgment of May 12, 2010, IV B 19/09
- BGH WM 1982, 974
- Christian Mezger, The complete processing of insolvent trading companies , 2010, p. 72
- BGH ZIP 2008, 224
- Max Hachenburg / Peter Ulmer, GmbH Law , 1997, p. 306