Under capitalization

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Capitalization ( English thin capitalization ) is in the company law occurs when a corporation in relation to its operation amount and activities insufficient equity has.

Insufficient equity

The concept of undercapitalization is a legal term , but it is based on economic causes. However, are clear economic principles for operating purposes and operating size of a company could release standards for its capitalization, not available. There are also no general rules about the ratio of equity to debt . It is generally recognized in economic literature that an upper limit for the degree of indebtedness can neither be theoretically justified nor derived empirically. Provisions about the economically necessary equity capital or the necessary financial resources of a GmbH have not yet been shown. A company is undercapitalized if its capital is insufficient for the statutory purpose. In the case of under-capitalization, the shareholders fail to provide the necessary capital. Assets are withheld from the company so that “the equity is not sufficient to meet the medium or long-term financial needs that exist, depending on the type and scope of the business activity, and cannot be covered by third-party loans.”

Nominal and material undercapitalization

A distinction is made between nominal and material under-capitalization.

  • In the case of nominal undercapitalization , the necessary financing is not granted as equity, but as a shareholder loan or in a comparable form ( third-party loans secured by shareholder guarantees).
  • Material undercapitalization exists if the capital requirement is not covered by outside capital either . It forms the most significant group of cases of direct liability. A GmbH can be materially undercapitalized despite the lack of overindebtedness .
    • An initial capitalization already arises in business start-up , when an inadequate capital base exists regarding the planned activities and therefore make a negative going concern assumption. Strict liability is ruled out in the case of the GmbH at the latest since the MoMiG came into force , since the entrepreneurial company introduced as a special case of the GmbH with a minimum capital requirement of only one euro with the approval of the legislature, at least with regard to its own formation costs and otherwise only conceivable other purpose would be undercapitalized.
    • The subsequent capitalization occurs either during the growth of the company, when the company be supplied no additional funds if a capital reduction takes place or when sustained losses erode equity.
  • Finally, in terms of extent and evidence, there is simple and qualified undercapitalization . One speaks of qualified undercapitalization when the financial resources for insiders are obviously inadequate.

Jurisprudence

The BGH pursued an independent institute of the liability external liability subsidiary in June 2000th This legal institution (also known as direct liability ) enabled the creditor of an undercapitalized GmbH - contrary to the principle of separation that usually applies - to access the private assets of the shareholders. The material undercapitalization is assumed in the literature as a case of direct liability of the shareholders, while the case law has not yet recognized a direct liability due to material undercapitalization. In the “Gamma” ruling of April 2008, the BGH made it clear that there was no liability for material undercapitalization just because the company had too few assets.

Since July 2007, however, the BGH has been pursuing the principle of internal liability towards society with its “Trihotel” ruling. With this ruling, the BGH abandoned the concept of abuse of the legal form leading to full liability and justified the shareholder's liability to destroy the existence of the company solely with Section 826 of the German Civil Code (BGB) as a special case group of immoral intentional damage . Prerequisites are improper interventions leading to the insolvency of the company or deepening it "without compensation" in its purpose limitation for the primary satisfaction of the company's creditors. In its “Trihotel” decision, the BGH made it clear that the existential annihilation liability is purely internal liability and not litigation liability. The shareholder of a GmbH is then liable to his GmbH and in the event of insolvency must return the withdrawn amounts to increase the assets.

In the context of this liability to destroy the existence of the company, the shareholder of a GmbH is responsible for the company's debts with his private assets if he deliberately does not take into account the purpose of the company's assets and, without adequate compensation - openly or covertly - deprives the company of assets that it needs to repay its debts and thereby causing bankruptcy.

Individual evidence

  1. ^ Jan Wilhelm, Corporation Law , 2009, p. 188 f.
  2. ↑ Joachim Jickeli / Dieter Reuter, memorial for Jürgen Sonnenschein , 2003, p. 667
  3. ↑ Alexander Bohn, interest rate limit and alternative models , 2009, p. 174
  4. ↑ Karsten Schmidt , Corporate Law , 4th edition, § 9 IV 4 a, p. 240
  5. ↑ BGHZ 68, 312, 318
  6. ↑ Max Hachenburg / Peter Ulmer, Comment on GmbH Law , Appendix to Section 30 Rn. 16
  7. ↑ Christina Richter, undercapitalization and existence-destroying intervention , 2008, p. 2
  8. ↑ Peter Jung, The entrepreneurial partner as a personal core of a society with legal capacity , 2002, p. 464
  9. ↑ BGH, judgment of June 24, 2000, Az .: II ZR 300/00: KBV
  10. ^ BGH, judgment of April 28, 2008, Az .: II ZR 264/06
  11. ^ BGH, judgment of July 16, 2007, Az .: II ZR 3/04
  12. ↑ BGH, judgment of July 16, 2007, Az .: II ZR 3/04, marginal note 21