Dieter MartinSpezifizierung der Haftung der gesetzlichen Organe von Kapitalgesellschaften unter besonderer Berücksichtigung der Thesaurierungspflicht einer Unternehmergesellschaft

About this book deutschenglish

In 2008, the German legislator, especially in response to the internationally very well accepted Ltd. and against the background of the ECJ jurisprudence on the Centros, Überseering and Inspire Art cases, resolved to adopt a legal and organizational form called “Unternehmergesellschaft – haftungsbeschränkt (UG)” with a de facto minimum share capital of € 1 on the basis of Section 5a GmbHG. In this, a legal reserve must be created in the balance sheet, which amounts to a quarter of the annual surplus reduced by a loss carryforward from the previous year (retention obligation).

But what is meant by the reserve, the use of which the legislature has drawn to admissibility? Is the legal reserve essentially identical to the share capital of the regular GmbH?

Nevertheless, this legal form variant of the GmbH benefits from the limitation of liability. However, the fact that the UG’s share capital is lower than that of the GmbH does not release its managing director from those obligations (legality, compliance, due diligence, loyalty, confidentiality and information) that are also applicable to the board of a stock corporation or the GmbH managing director affect. A (personal) liability of the UG manager in the event of a breach of such an obligation seems obvious.

Does the liability of the UG managing director also include the enforcement of the retention obligation through a personal liability for the misuse of legal options such as the payment of an excessive salary or overpriced company vehicles? In the further course, it is examined whether a separate (formal) shareholder resolution is required so that the legal form variant UG becomes a regular GmbH and thus the liability of the UG manager ends if the retention obligation is violated. In the present presentation, a comparatively detailed and fine-meshed structure is selected in order to find quicker answers to detailed questions regarding the UG, its retention obligation and the legal liability for any violations of this obligation. The chosen presentation is intended to increase the practical usefulness of a scientific treatise.

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