1. What is meant by the principle of capital preservation in a GmbH?
According to Section 30 Paragraph 1 Clause 1 GmbHG, the assets required to maintain the share capital of the company may not be paid out to the company.
As simple as this wording prescribed by the legislature sounds, the more complex this specification can be or become in the event of a necessary assessment.
2. What exceptions to the principle of capital maintenance does the legislator provide for?
This principle of capital maintenance in the GmbH is only broken in three cases (§ 30 Para. 1 Clause 2 GmbHG):
- in the case of payments and services made on the basis of an existing domination or profit and loss transfer agreement (Section 291 AktG);
- in the case of services that are covered and secured by a fully-fledged quid pro quo or restitution claim against the shareholder (primarily loans to shareholders);
- in the return of a shareholder loan and payments on claims from legal transactions that correspond economically to a shareholder loan.
3. Possible manifestations and examples of violations of the principle of capital preservation
The following actions and circumstances can constitute a violation of the principle of capital preservation and in particular trigger liability of the managing director under Section 43 GmbHG:
a) “Unsupervised” longer-term shareholder loans
According to Section 30 (1) sentence 2, it is possible and permissible according to the intention of the legislator to issue so-called shareholder loans to individual shareholders. In contrast to Section 19 (5) GmbHG, the term can also be longer and does not have to be due at any time.
However, this exception to the principle of capital maintenance only applies as long as the repayment claim against is valuable to the shareholder. If the shareholder’s financial situation deteriorates, the managing director of the GmbH is obliged to demand the loan back immediately.
b) Hidden distribution of profits
A hidden profit distribution is a fundamentally inadmissible donation of company assets outside of the procedure according to §§ 29, 46 No. 1 GmbHG. Such can z. B. be justified by excessive customary market payments to a shareholder. In this constellation, capital is withdrawn from the GmbH as it were “covertly”.
c) Liability for destruction of existence due to withdrawal of capital by the shareholders
The main purpose of a GmbH is that there is no liability enforcement against the shareholders. In principle, the company is only liable for its debts with the company’s assets, not with the assets of the shareholders, see Section 13 (2) GmbHG.
However, this presupposes that the shareholders also consider the capital requirements in the GmbH and do not intentionally or negligently divert capital from the GmbH through “excessive” resolutions and thereby drive the GmbH into crisis and/or overindebtedness.
In this case, the shareholders are liable under § 826 BGB i. V. m. §§ 30, 31 GmbHG.
4. Legal consequences in the event of a violation of the principle of capital maintenance in a GmbH
Violations of the principle of capital maintenance can justify liability claims against the management of the GmbH (§ 43 GmbHG) as well as against the shareholders.
The principle of capital preservation must therefore be observed and kept in mind in a large number of actions and decisions by those responsible in society.
Otherwise, in an emergency, this can lead to unpleasant and serious liability scenarios.
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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