In the case of the formation and capital increases of GmbHs, the management must ensure that the capital contributions are properly made. Otherwise there is a risk of criminal liability and liability, for example because of wrong insurance at the registry court.
About the topic
The Jena Higher Regional Court dealt with the capital increase in a GmbH. The shareholders had decided to increase the share capital in the required form (notarial certification). After the capital increase amounts had been paid in, the notary submitted the registration for the capital increase in the commercial register. It contained the Insurance of the managing directorsthat the capital increases
„were transferred to an account of the company at the free disposal of the managing directors for the purposes of the company and were subsequently not paid back to the shareholders“.
The Register court this insurance is enough not as proof for one effective raising of capital out. It rejected the registration of the capital increase.
The decision of the OLG Jena from October 13th, 2020 (Az. 2 W 340/20)
The OLG Jena overturned the decision of the registry court and made it clear that the management’s assurance given in the commercial register registration was sufficient. One above the the wording chosen (e.g. about the fact that the subject of the service is still at the free disposal of the management) saw the court Not as required at. The resolution showed once again that the raising of capital at the GmbH (and its registration with the commercial register) are of considerable importance.
Note: Care when raising capital when founding and increasing capital
The company’s assets are liable for the liabilities of the GmbH; As a rule, the company creditors cannot claim against the shareholders directly for company liabilities. In return for this liability protection apply strict capital protection regulations to raise and maintain the share capital.
Proper raising of capital is just as important when establishing the GmbH as it is for subsequent capital increases. In both cases there is strict guidelines to make the capital contribution on the shares. In principle, the following applies: Contributions in kind must be made in full, with cash contributions a partial payment is sufficient (at least a quarter of the nominal amount must always be paid in for each share and at least half of the total share capital must be paid in when the company is founded). The deposits must always be at the free disposal of the management and may not simply flow back to the shareholders.
Of course, this does not mean – the Jena Higher Regional Court has made this clear again – that above all cash deposits must remain in the GmbH’s account. These amounts can (and should) be used for business operations. Attention but applies in all constellations in which the contributions are returned to shareholders (e.g. by way of a loan or for the acquisition of assets). In such cases there is quickly one hidden contribution in kind or a so-called. Pay back and forth suggests that this can only be viewed as an effective capital raising under strict conditions.
To ensure proper capital raising, the Details of the deposit payments therefore when establishing or increasing capital carefully determined become. The management is also required to be particularly careful with (planned) return flows of assets to the shareholders, in order to identify and avoid or make legally effective any problematic hidden contributions in kind or back and forth payments. This is not only in the interests of the company, but also that of the managing directors themselves: When registering in the commercial register for the establishment or capital increase, they must ensure that the share capital has been effectively raised. This is by no means a formality, it is false insurance are punished and can even result in imprisonment.
When submitting the insurance to the registry court, there are still a few freedoms, as the decision of the Jena Higher Regional Court has shown. So there is for one no standard wording for registration and short insurances about the effective raising of capital may also suffice. The common practice is also unproblematic, in order to avoid multiple notary appointments, the registration registration is signed in the required form (notarized certification) directly at the notary appointment of the establishment / capital increase and left with the notary until the capital contributions have been effectively made. The main thing is that the content of the commercial register registration is correct at the time of submission by the notary (not necessarily when it is signed by the managing directors).
More news on the topic:
Requirements for raising capital at the GmbH
Proper provision of the deposit and its evidence
Paying the deposit back and forth leads to repayment claims
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