The decision of the OGH 29.5.2008, 2 Whether 225/07p is one of the most talked about high court decisions on partnership law in the recent past [GesRZ 2008, 310 ( Stingl ) = GeS 2008, 315 ( Bauer ) = JAP 2008/2009, 100 ( Rauter ) = RWZ 2008, 260 ( Wenger ) = ÖBA 2009, 60 ( Bollenberger )].
It deals with the question of preservation of capital for a GmbH & Co KG in the strict sense. In the decision, the Supreme Court affirmed the analogous application of § § 82 f GmbHG to a limited partnership, in which no resident general partner was a natural person. He points out that partnerships, in which no natural person shall be liable without limitation, several laws in pursuing the protection of company creditors, corporations have been treated. Even the ban on return of contributions serve to protect creditors, so it was on limited partnerships in the strict sense in relation to their limited partners by analogy. The reimbursement claim for the payment of illegal stand by the KG.
The question was and is controversial in teaching. This discussion will be the Supreme Court decision in detail and illustrated lecture. As a result, the Supreme Court follows the arguments of Karollus and poor-Rohrwig for analog applicability of the LLC capital maintenance rules to the GmbH & Co KG in the narrow sense. The response to this decision reflected then reflected the controversial image of the previous discussion (the Supreme Court the following among others Harrer , wbl 2009, 328 ff; differentiating, critical and very detailed Kalss / Eckert / Schörghofer , a special company law for the GmbH & ;? Co KG GesRZ 2009, 65). A concise summary of these reactions is found in Schörghofer , new case law on partnership law, GesRZ 2009, 275
Despite the consistency and transparency of some of these many contributions to the discussion is to provide advice and company registration practice before the situation with the basic message of this decision, "live" to have.
The applicability of § § 82 f GmbHG to the GmbH & Co KG, therefore, one consequence of that (a) can be distributed to the limited partners or the general partner GmbH only in the amount of net income, (b) Transactions between KG and limited partner or general partner GmbH is only permitted if they hold a third comparison (otherwise, these transactions are void), (c) the capital maintenance requirement for a reduction in the amount of liability and in a split of KG is observed. Moreover, the already existing Rsp in the liquidation of the GmbH & Co KG priority creditors' claims against the limited distribution of the assets considered as mandatory. It is
have addressed the reduction in the amount of liability under the principles of equity corporate capital reduction. This will result in the GmbH & Co KG (in spirit) Applicability of § § 54 ff GmbHG. The reduction in the amount of liability is to be published, known creditors must be notified directly. The creditors are to meet at the request or to ensure (so Grossmayer , capital maintenance at the GmbH & Co KG, ecolex 2008, 1023; also Stingl see GesRZ 2008, 315 Recalling reach Rohrwig , capital maintenance, 404 ff, such that a real division of a GmbH & Co KG probably going without other measures to protect the creditors will not be possible).
The following, from I currently investigating the case describes a variant of the consequences of these rulings:
At the B ** GmbH & Co KG are the B ** GmbH with a substance of interest as general partner and 85% Herbert B ** jun., Christine B ** and B ** Herbert sen. as limited partners with a liability amount and also made contribution in the amount of € 8,017.61 each, representing a Substance involvement of each 5% interest. At the
B ** GmbH, Herbert B ** jun. with a fully paid capital contribution of € 35,000 participated as sole shareholder.
The B ** GmbH & Co KG has a contract dated 08.27.2010 on the basis of their entire company balance transfer 30.11.2009 introduced into the B ** GmbH in exchange for new shares.
In return for the cash made receives the B ** GmbH & Co KG from the B ** GmbH in the General Assembly on 08/27/2010 adopted capital increase of € 27.000, - the entire new capital contribution.
The Contribution Agreement further provides that the transferring B dissolved ** GmbH & Co KG due to the introduction and deleted without liquidated, said the limited partnership will be around for the transfer granted capital contribution to their limited partners and pushed through to them. It also states that may be granted under this capital of the GmbH for its 85% stake in the matter transferred KG does not own shares, so the new shares, exclusively to the three limited partners are granted in proportion to their existing holding.
The introduction of capital (equity KG) is clearly positive and exceeds - even taking into account the 85% interest in the B ** GmbH - the amount of capital contribution for granted.
The B ** GmbH & Co KG asked their creditors with the following intervention in the Official Journal of the Wiener Zeitung, to require or ensure satisfaction of their claims:
By a contract dated 27.8.2010, the B ** GmbH & Co KG, based in E **, *** FN, their entire operation, according to current transfers balance sheet as of 30.11.2009 in the general partner, the company ** B GmbH, based in E **, *** FN introduced, and transferred its assets and liabilities new shares with a nominal value of total € 27.000, - by the acquiring GmbH to the transferring limited partnership or by way of share through smuggling of limited partners whose 3. The B **
transferring GmbH & Co KG is dissolved and thus should be deleted from the Companies Register.
The creditors of B ** GmbH & Co KG shall be entitled to require or ensure satisfaction of their claims.
The two arrived on 30.08.2010 is an applications company, the shareholders of B ** request GmbH & Co KG and the Managing Director of B ** GmbH, first in the company register in the two entities only register the fact of the transfer of the operation of the B ** GmbH & Co KG (§ 3 Z 15 FBG), announced at the same time, is that registration of the dissolution and deletion of the B ** GmbH & Co KG and made the registration of the capital increase resolution and the new capital contributions in the B ** GmbH separate companies with an application after the deadline will prompt creditors.
This "tiered application" is, in my fit, consistent and necessary.
is preliminary point: The
associated with the transfer agreement, transferring the operation of the KG to the GmbH is in this constellation in the context of capital maintenance at the GmbH & Co KG then safe if the transferring KG receives an equivalent contribution in the form of new shares in the acquiring GmbH. It is necessary to consider this matter, whether the aid granted in return new capital contribution amounting to € 27.000, - is the value of the transferred operations of the KG, which is both an assessment of the company of KG (disregarding the interest value of the general partner GmbH) and the acquiring GmbH on the other requires. The
here embarked approach makes this check unnecessary. By the smuggling of GmbH shares to their limited partners of the KG leads to the fact that the last remaining asset line from which the KG and KG should be deleted because of the decision of the KG partner without liquidation. That this & the GmbH Co KG is not possible without respect for creditor rights, was before the days of 2 Ob 225/07p uncontroversial.
This safeguard the interests of creditors is secured in a concrete case by the analogy of the LLC legal capital reduction provisions. The creditor protection is only then guaranteed if (1) the known creditors of this contribution having regard to their freezing-claim or satisfaction or other creditors by appropriately switching this call in the notice leaves release is made, (2) any claims by the notifying creditors are satisfied effectively and ensured, and (3) by smuggling of the shares as recently as after the 3-month period of § 55 section is 2 GmbHG, in concrete, meaning the capital increase is only after this period of supplementary declaration containing the necessary evidence to § 56 para 2 GmbHG actually entered in the commercial register.
If now the B ** GmbH & Co KG not be able to meet all incoming (and legitimate) freezing and satisfaction claims, it would either be unwound This transfer agreement or come to the capital of the limited purpose of settlement of claims, resulting in a worse position of creditors is to be excluded of the KG.
However, since civil law regardless due to the fact already carried out transmission Act now comes to transfer the operation of the KG to the GmbH is the meaning of the publicity principle the fact of this transfer of holdings according to § 3 Z 15 FBG both the transmitting and the receiving entity immediately entered.
0 comments:
Post a Comment