References |
113 |
|
|
3.7 Dissolution and Liquidation
The legal reasons for dissolution of a GmbH, as well as the procedural rules regarding its liquidation are almost identical to those applicable to an AG. According to Sec. 60 GmbHG, a GmbH has to be dissolved if one of the following reasons apply:
•Expiration of the ‘lifetime’ of the company as stipulated in the articles of association;
•Resolution of the shareholders’meeting deciding to dissolve the company;
•Initiation of insolvency proceedings;
•Rejection to initiate insolvency proceedings due to a lack of assets;
•Declaration of the Commercial Register court that the articles of association have been found to be incomplete or invalid in essential points;
•Order of deletion due to a complete lack of assets.
The dissolution has to be registered in the Commercial Register and is published by the liquidators and the register court. The notice is combined with an invitation to outstanding creditors to file their claims with the liquidators.
Fromthemomentofdissolution,thecorporation’sremainingexistenceservesthe exclusive purpose of liquidating its assets, satisfying its creditors from the proceeds, and distributing the remains to the shareholders. According to Sec. 70 GmbHG the liquidators are responsible for winding up the company, i.e. to terminate current transactions, to discharge and perform all liabilities and obligations and to turn its assets into cash. For this purpose the liquidators acquire full and exclusive power of representation by operation of the law.
Creditor protection is ensured by Sec. 73 GmbHG which determines that the so-called ‘waiting year’ (Sperrjahr) has to be observed: no liquidation proceeds may be distributed until at least one year after the third and final notification of the creditors was published. After all claims have been satisfied, the liquidator’s remuneration has been paid and any remaining proceeds have been distributed to the shareholders, the company is deleted from the Commercial Register, whereby the liquidation is completed and the GmbH’s legal existence finally comes to an end.
References
Bachmann G (2008) Introductory editorial: renovating the German private limited company—spe- cial issue on the reform of the GmbH. GLJ 8:1063–1068
Barneveld J (2009) Legal capacity and creditor protection—some comparative remarks. In: Zaman et al (eds) The European private company (SPE): a critical analysis of the EU draft statute. Intersentia,Antwerpen, pp 81–102
Bayer W, Hoffmann T (2009a) Die Unternehmergesellschaft (haftungsbeschränkt)—eine erste Bilanz. GmbH-Rundschau, pp 124–125
Bayer W, Hoffmann T (2009b) Die Musterprotokoll-Unternehmergesellschaft (haftungsbeschränkt). GmbH-Rundschau, pp R225–R226
Beurskens M, Noack U (2008)The reform of German private limited company: is the GmbH ready for the 21st century? GLJ 9:1069–1092
114 |
3 Limited Liability Company (GmbH) |
|
|
Braun S, Richter J (2010) Gründungsaktivitäten im Handelsregisterbezirk Lüneburg: Eine empirische Studie zur Unternehmergesellschaft. http://www.gmlg.de/32.0.html.Accessed 25 July 2011
Dornseifer F (2005) Germany. In: Dornseifer F (ed) Corporate business forms in Europe. Sellier, Munich, pp 211–294
Kornblum U (2010) Bundesweite Rechtstatsachen zum Unternehmensund Gesellschaftsrecht. GmbH-Rundschau, pp 739–748
Schmidt J (2008) The new Unternehmergesellschaft (Entrepreneurial Company) and the Limited —a comparison. GLJ 9:1093–1108