Separation principle (company law)
In company law , the principle of separation states that , as a rule, only the company's assets are liable for the liabilities of a corporation towards its creditors , but not the private assets of the shareholders.
The separation principle leads to a separation between private and corporate assets. According to AktG , (2) GmbHG and (1) HGB , the creditors of the stock corporation , the GmbH and the limited partner of the limited partnership are only liable for their company assets. If the partner involved in a corporation has paid in his share in full, he is released from liability (analogous to (1) HGB ). If the company's assets are then insufficient to repay the company's debts, there is usually no liability for the shareholder with his or her private assets. This is the main characteristic of corporations.(1) sentence 2
In partnerships adhere however, the general partners (all partners of a GbR and OHG , complementary in KG ) according to § , HGB (OHG) or , para. 1 HGB (KG) directly, personal and without restriction with their private wealth . There is therefore no separation principle in the case of liability.
However, the separation principle does not apply without restriction to corporations. The Reichsgericht had already dealt with the legal institution of direct liability for the first time in June 1920 . Strict liability means that the shareholders of a corporation must in certain cases be liable to the corporate creditors with their private assets without limitation if the corporate assets are insufficient. According to the Federal Court of Justice , deviations from the basic rule of the principle of separation may only be made under serious aspects. In the "Autokran" judgment, the shareholders were not allowed to invoke the legal independence of the legal entity, but had to be liable with their private assets analogous to §§ 105, 128 HGB. In the “Bremer Vulkan” decision and in later cases, the “abuse of the legal entity” led to the “loss of limitation of liability”.
A paradigm shift occurred at the BGH in July 2007 when it first pursued the principle of internal liability towards society in its “Trihotel” decision; However, this only meant a change in the basis of the claim. However, this paradigm shift has not changed the liability of the shareholders with their private assets.
With the exception of exceptional situations of direct liability, the creditors of corporations are only liable for their corporate assets. If this is not enough to fully settle the company's debts, the only option left for unsecured creditors is to file for bankruptcy .
- BGH, judgment of June 20, 2007, Az .: IV ZR 288/06
- RGZ 99, 232, 234
- BGH GmbHR 1961, 161, 162
- BGHZ, 95, 330 ff.
- BGHZ 149, 10 ff.
- BGHZ 151, 181, 1st principle
- BGH, judgment of July 16, 2007, Az .: II ZR 3/04