Share capital

Capital the sum referred to that of the shareholders to be paid deposits at a GmbH that the social contract is agreed. In the amount of the share capital, the shareholders are subject to special obligations to raise and maintain the company's assets in order to protect the creditors .

General

In Germany , the term share capital is limited to the GmbH and is used exclusively in the GmbH Act . It combines a minimum capital with the share capital in order not to provide the creditors of the GmbH with insufficient liability for company debts. The reason is that the GmbH is one of the corporations in which the liability is limited to the company's assets and the private assets of the shareholders are usually not available for corporate debts. Do not confuse the nominal capital with the capital contributions . The latter are the contributions of an individual partner with which he participates in the establishment of the GmbH. The total of all capital contributions results in the capital stock ( Section 5 Paragraph 3 Sentence 2 GmbHG).

Germany

When GmbH, the share capital is in the social contract regulated ( § 3 para. 1 no. 3 GmbHG), it is the social contract in capital contributions broken down ( § 3 para. 1 no. 4 GmbHG) with which each partner contributes to the GmbH . According to Section 5 (1) GmbHG, the minimum amount of the share capital must be € 25,000 (originally the share capital was DM 50,000 , which is still noted in some commercial registers today). As with the stock corporation , a minimum capital ensures that the creditors are compensated for the fact that they only get their claims repaid from the company's assets ( Section 13 (2) GmbHG).

In order to strengthen the German GmbH in international competition and to facilitate the establishment of new companies, it has been possible since November 1st, 2008 to set up entrepreneurial companies (UG) whose minimum share capital only needs to be € 1. As long as the share capital is below € 25,000, the UG must transfer 25% of the annual surplus (profit) to a reserve .

Functions

On the one hand, share capital has the function of making statements about the company's assets at the time of foundation and by means of register disclosure ( § 10 GmbHG) to inform outside third parties (in particular creditors) about the financial status of the newly established GmbH. On the other hand, the share capital contains the amount of capital that is decisive for raising and maintaining the company's capital.

Application

The raising of the share capital is guaranteed by § 7 Paragraphs 2 and 3, § 9 and § 19 to § 24 GmbHG. In addition to a minimum payment before registering with the commercial register, they also stipulate a default liability on the part of the co-partners for contributions not made by a partner. The GmbH may only be registered in the commercial register if each shareholder has paid in at least 25% of the shares he has subscribed and the total amount of all contributions is at least € 12,500 ( Section 7 (2) GmbHG). The share capital is to be made freely available to the GmbH through cash or non- cash contributions . After it has been entered in the commercial register, the GmbH can use it entirely for operational purposes, such as the acquisition of operating and office equipment . The § 21 to § 25 GmbHG ultimately dictate how to deal with the application of outstanding contribution obligations.

conservation

The nominal share capital made available to the GmbH must be maintained during the company's business activities, so it must not be undercut. If 50% of the share capital is lost, a shareholders' meeting must be convened immediately ( Section 49 (3) GmbHG). If the share capital is completely used up, the shareholders are obliged to file for insolvency ( Section 15a InsO). The § 30 and § 31 GmbHG prohibit the release of the necessary for the conservation of the share capital Company's assets to the shareholders and make the repayment ban unconstitutional undistributed amounts safely. The norm of § 30 GmbHG, unchanged since 1892, contains the requirement of inviolability of the share capital.

Switzerland

The share capital of a Swiss GmbH must be at least 20,000 Swiss francs (CHF) (Art. 773 OR). Since January 2008, the share capital has to be fully paid up ( fully paid in) (Art. 777c Paragraph 1 OR).

Austria

The share capital of a GmbH must be at least € 35,000 ( Section 6 (1) Sentence 2 GmbHG ), of which 50% must be paid in cash. It embodies the sum of the shareholders' payment obligations. Although the share capital does not allow any direct conclusions to be drawn about the company's assets, a high share capital usually stands for a higher creditworthiness of the company, since the assets in the share capital are tied up in the company. The capital is a constant size, only by capital increase or reduction of capital may be increased or decreased.

However, since 2014 there has been the possibility of a foundation privilege - this means that in the first ten financial years from the foundation only a capital of € 10,000 is set, of which only € 5,000 has to be paid in cash.

British law

There is no minimum capital requirement for a private company limited by shares and it can only be a few pounds sterling .

Individual evidence

^ Friedrich Kübler / Heinz-Dieter Assmann , Corporate Law , 2006, p. 267.
↑ ^a ^b Max Hachenburg / Peter Ulmer : GmbH Law , 2002, p. 293.
^ Max Hachenburg / Peter Ulmer, GmbH law , 2002, p. 1022.

[1] Friedrich Kübler / Heinz-Dieter Assmann , Corporate Law , 2006, p. 267.

[hache293-2] Max Hachenburg / Peter Ulmer : GmbH Law , 2002, p. 293.

[3] Max Hachenburg / Peter Ulmer, GmbH law , 2002, p. 1022.