Christopher SeemannAnforderungen an ein Beschlussmängelrecht der Personengesellschaften

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Subject of the thesis is the development of a law on deficient shareholders‘ resolutions (Beschlussmängelrecht) for partnerships (Personengesellschaften), which is transposed into a concrete legislative proposal. While the version of the thesis submitted to the Ruprecht-Karls-Universität Heidelberg in the summer of 2020 could not yet take into account the provisions of the Act on the Modernization of Partnership Law (MoPeG), the updated printed version of the thesis integrates Sections 110 et seqq. of the German Commercial Code (Handelsgesetzbuch, HGB), governing the law of deficient shareholders‘ resolutions for commercial partnerships (Personenhandelsgesellschaften) and which entered into force on 1 January 2024. The legislative proposal is adjusted to the new provisions.

With its fundamental approach, which is based on the dogmatics of shareholders‘ resolutions, the thesis arrives at results that deviate from Sections 110 et seqq. HGB: Inter alia, the distinction between an action for rescission (Anfechtungsklage) and an action for nullity (Nichtigkeitsklage) is replaced by a uniform action for deficient shareholders‘ resolutions. Central to the legislative proposal is furthermore the statutory regulation of the determination of resolution (Beschlussfeststellung) - a formal determination of resolution is able to distinguishing an organized resolution procedure from a less structured resolution procedure and can serve as a prerequisite for a time limit for filing a legal action regarding the deficiency of a resolution. This allows to integrate the law on deficient shareholders‘ resolutions developed in the thesis uniformly for all types of partnerships into Sections 705 et seqq. of the German Civil Code (Bürgerliches Gesetzbuch, BGB). Furthermore, the relevance theory (Relevanztheorie) for procedural deficiencies is regulated, the possibility of alternative defendants (action against the partnership or against the partners) is introduced and an extension of legal effect (Rechtskrafterstreckung) is proposed also for judgments dismissing an action.

Following from the dogmatic approach that the effectiveness of a deficient resolution would constitute a breach of the articles of association, the thesis develops the possibility of upholding deficient resolutions in the event of severe detriments for the partnership.