Lisa Kölsch Gläubigerschutz in der Umstrukturierung

About this book

Creditor protection is a prominent goal in German corporate law and is primarily ensured by rigid requirements for raising and maintaining capital in corporations. The flip side of capital protection can be seen in impediments for restructurings with asset transfers, especially within group structures. With the creation of the Transformation Act (Umwandlungsgesetz – UmwG) in the year 1995, such transactions were supposed to be facilitated without creditors having the possibility to prevent the effectiveness of these measures. Simultaneously, new creditor protection institutes were introduced, such as the provision of security pursuant to section 22 UmwG. The relation between these provisions and the traditional creditor protection under the Stock Corporation Act (Aktiengesetz - AktG), however, was not explicitly regulated. The tension between creditor-protecting rules of the rather flexible Transformation Act and the rather rigid rules on capital restrictions pursuant to section 57 AktG has not yet been clarified. This is particularly evident in the example of asset transfers, which can pose a special risk to creditors. In particular, the transfer of debt may provide appropriate means by which opportunistically motivated shareholders can gain a unilateral advantage at the expense of creditors. This dissertation therefore addresses the legal assessment of the transfer of assets by means of the restructuring options offered by the Transformation Act and allows for a delimitation of the areas of application of the prima facie<(i> competing creditor protection institutes of the Transformation Act and the Stock Corporation Act.