1. Starting point regarding the termination of a GmbH share
In contrast to the partnerships in §§ 131 Paragraph 3 No. 3., 132 HGB, the GmbHG does not provide for an “ordinary” personal departure of a GmbH shareholder from the GmbH.
This can lead to a binding of the shareholder to the GmbH, which was not wanted and intended and can also be inappropriate in individual cases.
It is therefore extremely important to include such a right of termination and a corresponding process for leaving the GmbH in the articles of association. Because otherwise the shareholder is stuck in the GmbH.
In this case, case law has established a “lifeline” for the shareholder in the form of an extraordinary right of withdrawal. However, this is only an emergency solution that comes into play in the event of a shareholder dispute (and not in “peaceful” times).
A shareholder can only withdraw from the company if there is an important reason.
A “important reason” is given when it is unreasonable for the shareholder to remain in the company and another solution to the problem, such as in particular a sale of shares, is not possible.
2. The execution of the termination in a GmbH
Both in the event of a possible ordinary termination in accordance with the articles of association and in the event of extraordinary termination for important reasons, the resignation takes place through a unilateral declaration of intent that must be received. In this respect, it is – analogous to a termination – a unilateral design declaration.
To protect the rights of the departing shareholder, the termination should of the company and the individual shareholders in writing and verifiably.
3. The legal consequences of termination by the GmbH shareholder
In contrast to partnership law, there is no accrual in the case of corporations, and in particular in the case of the GmbH, analogous to § 738 Para. 1 BGB.
Even after the termination has been effectively declared, the shareholder remains part of the company. However, the GmbH is obliged to observe and implement the termination. To do this, the GmbH must either collect the business share of the person leaving or arrange for it to be transferred to a third party.
Only then can the shareholder demand his severance payment.
4. Summary
The termination of a GmbH is complex and can involve serious legal problems.
These range from tax law issues and corporate law issues to topics of implementation and enforcement of the termination.
Before declaring a company termination, the procedure should be discussed with a competent lawyer in order not to get into a disadvantageous situation in the event of termination, or even to be forced to act. This applies all the more if a shareholder dispute and/or a tense financial situation is to be expected.
This article does not constitute concrete and individual legal advice, but only provides a rough initial overview of the very complex legal matter described. You can only obtain legal certainty for your specific case constellation through coordinated examination and advice from a competent lawyer.
I am happy to be at your disposal as a lawyer and specialist lawyer for a legal assessment and assessment of your case and represent your interests assertively and resolutely. of the company and the (co-)shareholders. Feel free to contact me by phone or write to me.
I advise nationwide on site or via zoom as a specialist lawyer in the areas of corporate law, tax law and insolvency law, especially in the cities and metropolitan areas around Stuttgart, Heilbronn, Karlsruhe, Freiburg, Ulm, Augsburg, Munich, Frankfurt, Wiesbaden, Saarbrücken, Kaiserslautern, Bonn, Wuppertal, Duisburg, Nuremberg, Munster, Saarbrücken, Düsseldorf, Cologne, Dortmund, Hanover, Kassel, Leipzig, Dresden, Bremen, Hamburg and Berlin.
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