Full completion
Of full completion is in corporate and association law speaking, if a company the three phases resolution , liquidation and extinction has passed through the register. A company or an association has only expired as a legal entity when it is fully terminated. Because of the serious consequences of deletion , the registry court has the task of carefully checking the lack of assets before deletion.
General
For all legal forms, full termination requires the completion of the three termination stages of dissolution, liquidation and deletion. Dissolution is the period during which the company enters the phase of winding up or liquidating its business from a commercial activity. Settlement, in turn, is the complete dissolution of the personal and property obligations of the shareholders through the sale of all assets and any distribution of the remaining assets in order to enable the deletion of a company through actual lack of assets. In legal terms, the liquidation of a company requires its previous dissolution. From an economic point of view, the company will continue to exist, but with a change in its object now for the purpose of liquidation; to do this, however, it must be designated as a settlement company (cf. for example Section 157 (1) HGB) and the addition “i. L. "(" in liquidation ") or" i. Abw. ”(“ In settlement ”) so that your settlement phase is recognized in trade.
Doctrine of the double fact
Both the commercial as well as the corporation must go through the three phases of dissolution, liquidation and deletion. The only disputed issue is whether the deletion of the register in the context of a full termination has constitutive or merely declaratory effect. For corporations it is assumed that in addition to the lack of assets, the deletion in the commercial register has also taken place. In the case of commercial partnerships, the deletion is only of a declaratory nature, because, for example, the GmbH & Co. KG has come to an end with the complete distribution of its assets.
According to the doctrine of the double offense prevailing in the literature and represented by the highest court rulings, the cumulative prerequisite for the full termination of a trading company is the actual lack of assets and the deletion in the register. Company assets subsequently found prevent full termination from occurring, despite deletion in the register, because the offense of lack of assets is missing. That is why the registry court has an important task in the context of the full completion. According to § 26 FamFG, it has to check ex officio whether the liquidation has actually been completed and consequently neither residual assets nor other liquidation measures are required. Therefore, § 394 FamFG should be interpreted in such a way that only a company with no real assets can be deleted. From § 394 FamFG it cannot be inferred which requirements are to be placed on a full termination, because here only the requirements for an official cancellation in the event of lack of assets are regulated. Section 394 (1) sentence 1 of the FamFG grants the registry court a margin of discretion in the case of companies with no assets, while under sentence 2 there is an obligation to delete the assets after the insolvency proceedings have been carried out.
If a corporation still has realizable assets, it must be liquidated so that deletion does not lead to its termination, because termination requires deletion and actual termination of the liquidation. If residual assets have been found, a supplementary liquidation is required. The doctrine of the double offense therefore requires lack of assets and deletion of the register only in corporations, while in commercial partnerships, lack of assets is the only requirement for a complete termination. Because commercial partnerships are fully terminated when the transaction is completed and have therefore already expired.
deletion
The deletion of the company or the association in the respective register has serious consequences for trade, because due to the "positive publicity" of the register, the person seeking information can trust that a deleted company no longer exists. Deletion creates the appearance of the termination of a company for legal transactions. However, only facts that are subject to registration participate in the “positive publicity”. The dissolution is compulsory for “non-traders” ( Section 31 (2) sentence 1 HGB) and for corporations ( Section 65 (1) GmbHG, Section 273 (1) AktG). 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. 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 therefore the last step in the termination process of a corporation. In the case of commercial partnerships, deletion in the commercial register is not required for full termination to occur.
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 has been 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.
Individual evidence
- ↑ a b Heidemarie Wagner, Hans-Joachim Rux: Die GmbH & Co. KG , 2004, p. 394
- ↑ BGH NJW 2001, 304, 305
- ↑ Christian Mezger: Complete processing of insolvent trading companies , 2010, p. 71.
- ↑ Christian Mezger: The complete settlement of insolvent trading companies , 2010, p. 72.
- ↑ Wolfram Henckel, Walter Gerhardt: Insolvenzordnung Volume 1 , 2004, p. 670.
- ↑ Wolfram Henckel, Walter Gerhardt: Insolvenzordnung Volume 1 , 2004, p. 669.
- ↑ OLG Naumburg, judgment of September 19, 2007, Az .: 2 U 77/07
- ↑ OLG Celle, judgment of January 3, 2008, Az .: 9 W 124/07
