Vor-GmbH
With the formal resolution of the statutes of the GmbH , a preliminary company is created : the Vor-GmbH (also GmbH in formation , in short: GmbH i. G. ). This then exists until it is transferred to the actual GmbH through entry in the commercial register .
In view of the diversity of the formation requirements to be met by the GmbH, the establishment of such a company is divided into several phases:
- 1. Pre-founding company
- The pre-founding company is usually a company under civil law (GbR) with the purpose of establishing a GmbH; The company exists from the time of the merger of the founders until the conclusion of the notarized articles of association of the later GmbH. In contrast to the normal case (freedom of form), the articles of association require notarial certification if the partners undertake to establish a GmbH. If the necessary certification is missing, the principles of the doctrine of the faulty society apply ; alternatively, a so-called pre-founding company in the broader sense may also be desired. It does not trigger a foundation obligation, but only serves to prepare for the foundation. This is particularly important if the pre-founding company is also to become entrepreneurial. In these cases, the pre-founding company can also be an open trading company (OHG) if the requirements of § 105 and § 123 HGB are met.
- 2. Vor-GmbH
- Also referred to as "GmbH in formation", the previous company exists from the time of the conclusion of the notarized partnership agreement until the constitutive entry of the GmbH in the commercial register.
- 3. GmbH
- The GmbH then exists from the time of entry in the commercial register.
Legal nature
The legal nature of the Vor-GmbH was unclear for a long time. On the one hand, the GmbH is only created when it is entered in the commercial register ( Section 11 (1) GmbHG ); on the other hand, it cannot be assigned the status of an OHG or GbR beforehand, as the shareholders want to set up a corporation through the founding agreement that has already been concluded . Today it is therefore recognized that the Vor-GmbH is an organizational form of its own type ( sui generis ), which is at least partially legally capable , as it already has corporate structures and is already capable of acting through its managing director as a representative body. The parent company as such and not every individual partner or a group of its partners different from it is the bearer of the assets brought in. The rules of the GmbH are applicable to the previous company, insofar as they do not require registration. In particular, the Vor-GmbH is capable of land register and company law .
liability
Even with the pre-GmbH, a distinction must be made between the acting (regularly: managing director) and the shareholders in terms of liability.
Actor's liability
Today, agent liability is generally no longer applied to founding shareholders (exceptions are conceivable depending on the case). Earlier jurisprudence assumed that the founders of the GmbH triggered the liability of the agent under Section 11 (2) GmbHG ( further term of agent ) by agreeing to start business . Today, agent liability is understood as pure organ liability . Accordingly, only the managing director or persons who appear like him ( de facto managing director ) can be considered as agents . According to this established case law, the degree of causation is too low for those shareholders who have only consented to the start of business before registration.
Accordingly, the agent's liability generally applies to the managing director acting in the founding phase. Liability in accordance with Section 11 (2) GmbHG is fundamentally ancillary to the obligation of the previous company and only applies to liabilities that are legally and similar to legal transactions. Social security contributions and taxes, on the other hand, do not cover the liability of the agent, other statutory obligations only if they are based on a legal business relationship.
The agent's liability begins with the conclusion of the notarized articles of association and expires with the entry of the GmbH in the commercial register. In the event of liability, however, the managing director has recourse claims against the company in accordance with § 611 , § 675 and § 670 BGB or by way of liability under the balance sheet.
Liability of the shareholders
Since the limited liability of the shareholders should only take effect when the GmbH is entered in the commercial register, thus ensuring that in particular the share capital is at the free disposal of the managing director, the limitation of liability of Section 13 (2) GmbHG to the Vor-GmbH is not without further applicable. Rather, there are no statutory liability rules for the shareholders for these cases. These loopholes have been filled by case law.
According to this, three cases can be distinguished:
Successful entry: sub-balance sheet liability
In principle, the share capital as the economic basis of the GmbH must not be consumed by the liabilities entered into by the pre-GmbH (principle of integrity). This is to ensure that (at least at the time of creation) the liability pool is in the GmbH, which is shown as share capital in the commercial register. This is achieved by the fact that the founding shareholders are proportionally liable for the start-up losses incurred by the GmbH in the course of internal liability towards the GmbH (liability pro rata ). You are responsible for ensuring that at the time of entry in the register the company has the stated share capital from a balance sheet point of view, even if you have already made your contribution to the share capital. In this respect, this so-called sub-balance sheet liability is aimed at replenishing the share capital . Since the claim becomes due with the entry in the register and from this point in time the limitation of liability of § 13 para. 2 GmbHG applies, the claim is designed as internal liability .
Failed registration: Loss coverage liability
In these cases, the case law makes the shareholders of the Vor-GmbH liable for the losses shown in the balance sheet after the share capital has been used up. In analogy to liability under the balance sheet, this is a proportional internal liability (pro rata) of the shareholders towards the Vor-GmbH, so that the creditors can only access the company's assets. It is a structural principle of corporation law that the shareholders are only liable internally and pro rata. In addition, a proportional internal liability avoids a “race of creditors” in the insolvency of the company. Because the insolvency administrator asserts the claims of the creditors ( Section 80 (1) InsO ), the creditors are equally satisfied according to the standards of insolvency law. It is predominantly assumed that the claim only becomes due when the entry is made in the register or when the entry fails. An ongoing loss coverage liability would encounter considerable practical obstacles, since balance sheet losses are not calculated permanently and can be compensated for by profits until the pre-GmbH fails. Since the liability for loss coverage is completely absorbed in the sub-balance sheet liability in the case of the registration of the GmbH, it only becomes relevant independently in the event that the registration fails.
In some cases, however, it is required that the founders should be jointly and severally liable to the creditors in accordance with Section 128 of the German Commercial Code (HGB) (joint and several external liability; the creditor could claim the entire amount from a founder. This founder would then have compensation claims against the other founders). It is alleged that the creditors are exposed to considerable difficulties with the internal liability model: If the Vor-GmbH has no assets, there is no direct liability on the shareholders. The creditor must obtain a title against the Vor-GmbH, seize the pro rata liability claims of the same against the founders ( § 829 and § 835 ZPO ) and demand them through partial actions and partial enforcements. Due to this criticism, even the Federal Court of Justice (BGH) has recognized two exceptions to its proportional internal liability in favor of joint and several external liability: For cases of one-person formation and the lack of assets of the Vor-GmbH.
There are also exceptions for: Inability of the Vor-GmbH to act; Presence of only one believer; fake Vor-GmbH (the company is actually a GbR or oHG). In all these cases it is seen as a mere formalism if the creditor would have to seize the claims of the GmbH against its shareholders in the foreclosure .
Internal liability is not an established case law. On the other hand, internal and external liability are not only characterized by different procedural enforceability, but also show differences with regard to the subject of liability: While creditors can assert all kinds of liabilities through external liability, liability for loss coverage only arises in the case of liabilities that reduce equity in the balance sheet (Losses). This is the only way to ultimately achieve an appropriate balance between the interests of the creditor and the founder. From a legal-political point of view, too, the BGH will rather stick to internal liability, since the external liability unreasonably disadvantages founding shareholders who are only marginally involved and otherwise it would give up its desired, uniform founder liability for the Vor-GmbH.
Discontinued Entry: Personal Liability
There remains the case constellation in which the founders no longer seriously pursue the constitutive registration of the company. Here one speaks of the "fake pre-society" .
According to a corresponding decision by the BGH, there is broad agreement that the principles of liability for loss coverage are only applicable if business activity is terminated immediately after the intention to register has been abandoned and the previous company is wound up ( liquidation ). If, contrary to this, the business is pursued in an advertising manner, the founders have unlimited personal responsibility for all liabilities of the previous company in accordance with the principles of partnership law. Because by giving up the intention to register, the sole reason for denying the creditors of the previous company a personal claim against the founder, which was that the previous company was a necessary transition stage to the GmbH. If one were to apply loss coverage liability here as well, the founders would be unjustifiably privileged and a new type of company would emerge. In addition, this case constellation is close to the design in which the founders did not intend to register the company from the start. Here, too, it is recognized that the founders must allow themselves to be treated as if they were linked to one another in a partnership.
According to this concept, the founders are personally liable to the creditors in full as joint and several debtors after giving up the intention to register ( §§ 421 ff. BGB; not only proportionally). In particular, the outward appearance of the company as a "GmbH" does not constitute a limitation of liability.
Individual evidence
- ^ BGH judgment of September 21, 1987 Az. II ZR 16/87; NJW-RR 1988, 288; here only guiding principle.
- ^ BGH decision of March 16, 1992 , Az. II ZB 17/91; BGHZ 117, 323, full text
