Das reformierte Recht der Gesellschafterdarlehen – eine Zwischenbilanz*

2017 ◽  
Vol 46 (5) ◽  
Author(s):  
Detlef Kleindiek
Keyword(s):  
Limited Liability ◽  
Federal Court ◽  
Company Law ◽  
Insolvency Law ◽  
Court Of Justice ◽  
Time Period ◽  
Shareholder Loans ◽  
Article Analysis ◽  
Federal Court Of Justice ◽  
Legal Consequences

Mit Wirkung zum 1. November 2008 hatte der deutsche Gesetzgeber das Recht der Gesellschafterdarlehen in haftungsbeschränkten Gesellschaftsformen grundlegend reformiert. An die Stelle des früheren „Zwei-Säulen-Modells“ mit sowohl gesellschaftsrechtlich als auch insolvenzrechtlich ausgerichteten Regelungen sind ausschließlich insolvenzrechtlich konzipierte Sondervorschriften getreten. Sie begründen den Nachrang der erfassten Gesellschafterforderungen in der Insolvenz der Gesellschaft, abgesichert durch eine Haftung aus Insolvenzanfechtung für bestimmte gläubigerbenachteiligende Handlungen innerhalb abgegrenzter Fristen. Der Beitrag analysiert – im Sinne einer Zwischenbilanz – Entwicklung und Stand der Erkenntnis auf zwei zentralen Themenfeldern: dem Normzweck des neuen Rechts und den Rechtsfolgen vorinsolvenzlicher Forderungsabtretung und Anteilsübertragung. Ergänzend werden einige weitere Grundsatzentscheidungen des Bundesgerichtshofs zum reformierten Recht der Gesellschafterdarlehen in den Blick genommen, um erste Rechtsprechungstendenzen aufzuzeigen.With effect as of the 1st of November 2008, the German legislator has fundamentally reformed the law concerning shareholder loans in regards to limited liability companies. The former so-called “two-pillar model”, which was based on company law as well as on insolvency law regulations, has been replaced by special provisions solely regarding insolvency law. The German legislator justifies the subordination of the requirments of shareholders regarding the insolvency of the company by securing the possibility of, within a specific time period, creating a liability resulting from contesting the insolvency for certain actions that put creditors at a disadvantage. For the purposes of an interim balance, the following article analysis the development and state of knowledge on two important thematic fields: the ratio legis of the new law and the legal consequences in regards to a pre-insolvency assignment of claims and the transfer of shares. Additionally, some other fundamental decisions by the Federal Court of Justice in regards to the reformed company law based on insolvency will be looked at, in order to indicate primary jurisdiction tendencies.

Die Prüfung der Zahlungsunfähigkeit mittels Algorithmen

2022 ◽  
Author(s):  
Thomas C. Fallak
Keyword(s):  
Artificial Intelligence ◽  
Statistical Methods ◽  
Federal Court ◽  
Digital Analysis ◽  
Medium Term ◽  
Insolvency Law ◽  
Accounting Data ◽  
Court Of Justice ◽  
Federal Court Of Justice

Even after various decisions of the German Federal Court of Justice on the concept of illiquidity under insolvency law, the methodology of the test remains unclear. This also applies to the justiciability of business forecasts. The thesis examines whether and within what limits testing for illiquidity can be performed by digital analysis of accounting data. It also describes the extent to which short- and medium-term liquidity planning can be supported by quantitative forecasts. Statistical methods as well as approaches from the field of artificial intelligence are described.

Management Buy-Out, Cash Pooling, Up-Stream Loans and Guarantees in German Group Companies: Old Concepts – New Developments

2004 ◽  
Vol 5 (10) ◽  
pp. 1217-1232
Author(s):  
Jochen Herbst
Keyword(s):  
Limited Liability ◽  
Federal Court ◽  
Legal Issues ◽  
Legal Practice ◽  
New Developments ◽  
Share Capital ◽  
Court Of Justice ◽  
German Company ◽  
Federal Court Of Justice

For more than a century, the cardinal provision ensuring the preservation of the capital reserve in the registered share capital amount in a Gesellschaft mit beschränkter Haftung (GmbH – German company with limited liability) has continued unaltered. This is the payout prohibition contained in § 30 (1) Gesetz betreffend die Gesellschaften mit beschränkter Haftung (GmbHG – German Act on Companies with Limited Liability), which the Bundesgerichtshof (BGH – German Federal Court of Justice) has identified as a “cornerstone of the GmbHG.“ In consideration of the impressive period of applicability and evident resistance of the provision against legislative encroachments, the lay person, for example a managing director of a GmbH as primary addressee of the provision, is now supposed to be able to assume that at least the fundamental legal issues concerning the provision have been sufficiently clarified through jurisprudence and legal practice in the meantime.

Liability Within Corporate Groups (Bremer Vulkan) - Federal Court of Justice Attempts the Overhaul

2002 ◽  
Vol 3 (1) ◽  
Author(s):  
Peer Zumbansen
Keyword(s):  
Criminal Law ◽  
Tort Law ◽  
Federal Court ◽  
Company Law ◽  
Corporate Groups ◽  
Court Of Justice ◽  
Long Time ◽  
Federal Court Of Justice ◽  
Corporate Liability ◽  
Financial Losses

On 17 September 2001, the Federal Court of Justice (Bundesgerichtshof) handed down a landmark decision regarding liability within corporate groups (“Konzernhaftung”) which is likely to give an entirely new direction to the law in this field. Most notably, the Court held that, in spite of the fact that the case concerned a by now classical example of a corporate “daughter” incurring serious financial losses due to management decisions taken by its corporate “mother”, resulting in the erosion of the daughter's financial basis, the Court exclaimed the statutory as well as judge made law regarding corporate liability within corporate groups as not applicable in this case. Thus casting somewhat aside a great and complex bulk of company law in form of a rather ambiguous and quite eruptively evolving law of corporate liability within corporate groups, the Court held that tort law and criminal law would be applicable to the case in point. Paradoxically, it is the Court's apparent shifting away from corporate group liability that might allow for a clearer view on the applicable company law in an area that has, for a long time, been dominated by heated debates about the Court's ambitious interpretation of the relevant norms, their reach and concrete application.

Die Anwendbarkeit des Allgemeinen Gleichbehandlungsgesetzes auf GmbH-Geschäftsführer

2020 ◽  
Author(s):  
Anselm Christiansen
Keyword(s):  
Detailed Analysis ◽  
Limited Liability ◽  
Case Law ◽  
Federal Court ◽  
Employment Law ◽  
Equal Treatment ◽  
European Law ◽  
Foreign Investors ◽  
Court Of Justice ◽  
Federal Court Of Justice

The applicability of employment laws for managing directors of German GmbHs (limited liability companies) is subject to a multitude of different provisions in German and European law and their corresponding jurisprudence. This dissertation examines managing directors’ protection against discrimination according to the failed section 6 of the General Act on Equal Treatment (AGG) against the background of the recent case law of the ECJ and the German Federal Court of Justice (BGH). The dissertation comments on the differences between definitions of an ‘employee’ under German and European law on the basis of a detailed analysis of the ECJ’s jurisprudence. It addresses issues resulting from conflicts between corporate and employment law which the ECJ has not resolved appropriately and evaluates them in a different manner. Furthermore, the work provides guidance on determining what constitutes an ‘employee’ according to the ECJ’s definition in practice. The author is a practising lawyer who focuses on advising foreign investors in Germany.

Corporate Groups: Competences of the Shareholders’ Meeting and Minority Protection – the German Federal Court of Justice's recentGelatineandMacrotronCases Redefine theHolzmüllerDoctrine

2004 ◽  
Vol 5 (9) ◽  
pp. 1057-1079 ◽  
Author(s):  
Marc Löbbe
Keyword(s):  
Balance Of Power ◽  
Federal Court ◽  
Company Law ◽  
Minority Shareholders ◽  
Minority Protection ◽  
Corporate Groups ◽  
Court Of Justice ◽  
Federal Court Of Justice ◽  
Federal Supreme ◽  
Stock Corporation

There are few cases in the law of corporate groups that have provoked as much interest, applause and critique as theHolzmüllerdecision of the Federal Supreme Court. On February 25, 1982, the 2ndZivilsenat(Chamber of civil cases) of theBundesgerichtshof(BGH – Federal Court of Justice), the highest court with assigned competences for company law, adopted what would later be known as theHolzmüllerdoctrine. Since then theHolzmüllercase has influenced the course of countless shareholders’ meetings, been relied on in numerous shareholder actions and has initiated intensive academical as well as practical debate. What is it all about? At the core,Holzmüllerdeals with the balance of power between theHauptversammlung(shareholders’ meeting) and theVorstand(board of directors) of a GermanAktiengesellschaft(AG – stock corporation) within the context of corporate groups. Practically, the protection of minority shareholders of a corporate group's parent company is a major underlying issue.

Excessive Data Collection as a Form of Anticompetitive Conduct: The German Facebook Case

2021 ◽  
pp. 0003603X2199702
Author(s):  
Anne C. Witt
Keyword(s):  
Data Collection ◽  
Competition Law ◽  
Federal Court ◽  
Digital Platforms ◽  
High Profile ◽  
Court Of Justice ◽  
Federal Court Of Justice ◽  
Constitutional Right ◽  
Abuse Of Dominance

In a high-profile decision of February 6, 2019, the German Federal Cartel Office prohibited Facebook’s data collection policy as an abuse of dominance for infringing its users’ constitutional right to privacy. The case triggered a remarkable interinstitutional dispute between the key players in German competition law. Conflicting rulings by the Düsseldorf Higher Regional Court and the German Federal Court of Justice further illustrate how deeply divided the antitrust community is on the role of competition law in regulating excessive data collection and other novel types of harm caused by dominant digital platforms. This contribution discusses the original prohibition decision, the ensuing court orders, and legislative reform proposals in the broader context of European Union and U.S. competition law.

Freiheit der Advokatur

2021 ◽  
Author(s):  
Philipp Heinrichs
Keyword(s):  
European Union ◽  
Rule Of Law ◽  
Selection Procedure ◽  
Federal Court ◽  
The European Union ◽  
Court Of Justice ◽  
German Constitution ◽  
Federal Court Of Justice ◽  
The Subject

Since the abolishment of singular admission to the higher regional courts in 2000, the judiciary has been asking itself the question whether singular admission to the Federal Court of Justice is compatible with the German Constitution and the laws of the European Union. In particular, the non-transparent selection procedure was and is the trigger of controversial discussions and the subject of legal disputes. The work questions the conformity of singular admission to the Federal Court of Justice with the German Constitution and considers the selection procedure to be without transparency, comprehensibility and rule of law.

scholarly journals Radical men and sympathizing women? Gendered constructions of agency in charges of terrorism in Germany

2021 ◽  
pp. 203228442110602
Author(s):  
Kerstin Eppert ◽  
Viktoria Roth
Keyword(s):  
Criminal Liability ◽  
Federal Court ◽  
Political Agency ◽  
Dominant Male ◽  
Scholarly Research ◽  
Institutional Practices ◽  
The Past ◽  
Court Of Justice ◽  
Federal Court Of Justice

In the past, scholarly research in extremism and terrorism studies tended to analyse women’s engagement with violent ideology-based groups from a normative angle, framing female commitment to radical ideologies and violence as cases of inherent victimization or as instigated by a dominant male. Particularly in the negotiation of women’s transnational support of terror organizations in Syria, gendered frames of political agency have been reproduced in the institutional practices of the judiciary. Taking the case of Germany and four appeals lodged at the Federal Court of Justice between 2015 and 2017 as examples, this article analyses gendered conceptions of agency in argumentation with respect to criminal liability in the context of extremist engagement in Syria. It identifies, first, the gendered construction of defendants before the courts and inherently gendered assumptions about agency and second, a formal organizational understanding in the terrorism clauses as the two underlying problems and suggests that current concepts in terrorism norms at national, EU und international levels deflect the focus on the wider conflict dynamics where civilians’ support to violence is concerned.

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