Cubefield Hard Version

GmbH problems entrepreneurs in need





criminal proceedings against the business leaders

If the Managing Director / CEO in the company's crisis of legal rules violation and that is due to the many rules are not that hard - he is, firstly, the risk of

a personal liability and the other, he is composed of the risk of being prosecuted.

require Often these risks against each other. Thus, creditors of the company in respect

on the private use of the

management usually active only when identified in a criminal

because Insolvenzverschleppung etc. adhesion-

circumstances were.

enable the information obtained from the criminal proceedings the

make creditors often only the ability to successfully

private liability claims asserted. Here come the company's creditors, the

special investigative powers to the prosecutor's good.

the Managing Director / Executive Board is also from an economic point of

advise urgently to underestimate resulting from a criminal

dangers. In particular, criminal

allegations are not given too quickly and under the

defend all legal options are exhausted.

too often by the accused business leaders

filed extensive confessions to an understanding with the

to reach prosecutors and to shorten a process time.

This is the personal liability of the manager, unfortunately, often much

are undervalued. In this respect, discussions of many fatal errors

Defense lawyers are noted.

Even if a manager wants a personal bankruptcy proceedings

disruption of his personal financial circumstances, can

he faces criminal proceedings from the far-reaching disadvantages. Thus

various liabilities of the remaining debts

excluded based on a tort liability.

can be plausibly only if the

company documents for a new CEO or a

new headquarters lie.



The old manager requires a protocol for

business transfer to the new. If the company documents at

local accountant or lawyer, they can then be seized . 

Are the corporate or business records for investigators not

tangible, the criminal findings need to be expensive

researched elsewhere. This is done by accounts and sales query evaluation, survey of employees and business partners. These investigations usually pull out of many months and even years.



Coated search warrants and sprawling investigation

can be fought by legal means and complaints. The

should do only the defense lawyers. 

Some defense lawyers tend to deal with the rapid

Prosecutor and advise the client to prematurely show

blame is the time. This can only be advised when the burden of proof would be too cumbersome, the process risk according negative or the negotiated sentence after the deal a small fine (less than 90 daily) is.

through a lengthy process not only the accused

is worn down, the other parties. In such cases, the

probability is high that the court case "finally" will conclude

. In most cases, can better be achieved

negotiating positions in the second instance.

should basically be a lengthy process to set

. Ultimately, such a process

tactical decisions to the experienced Defense lawyers are left.

var _gaq = _gaq

straw man-the man behind-liability: BGH II ZR 225/91

Who establishing a limited liability company is a straw man (Trustee) uses, is also in terms of § 19 GmbHG and § 24 GmbHG following commitments to to handle application of the share capital as a shareholder.

(BGHZ = 118.107)

Rating:
On behalf of the people

The applicant is a trustee of the assets in the year 1988 in bankrupt as textile trade - and production mbH (common debtor). The Community Debtor was founded in 1983. From their capital in nominal amount of 50,000 DM, the merchant Bernhard as a deposit of $ 1000 and took over the Accountants Sch. of 49000 DM in a closed simultaneously with the establishment of common debtor trust agreement, the shareholders agreed that Sch. his shares in trust for example, consider (§ 1), its activities under this contract extends to keeping all the rights of the shares formal and formal acts in society, "such as determining the annual accounts, adoption of the income distribution, revocation and appointment of managers, Changes in the social contract, capital increases or capital reductions, "according to the instructions of the defendant as long to make up the liabilities of the Lord as to the defendant were paid (§ 2). At the same time Sch. irrevocably instructed to pay off the profits of the debtor in the community as well as its tax debts owed to the defendant (§ 3). The termination of the contract should be done only with the consent of the defendant may (§ 6 paragraph 5). Sch. was entitled to reimbursement and remuneration (§ 5). business is the subject of the defendant engineering. From transactions with non-European countries they had some for us to accept as payment for linen. The distribution of such compensation product she used to 1983 of a small single-business company, which was led by Mrs. Josephine B., the mother of a member of the common debtor. The early 80's had the defendant from such operations against the Company as bad debts in the millions. The applicants have estimated at around 28 million DM Until 1983, these claims rose by a further 2.8 million DM at establishing the common debtor, which handled transactions with the defendant the same type, the common debtor received by the defendant Sch. a loan of an equivalent amount, which they instructed forwarded to the company as to ensure that their obligations to the defendants settled. In a protocol submitted by the applicant a meeting on 12 April 1985 with the participation of the defendant's home, Sch. and held a number of senior employees of the defendant, states, inter alia, the conversation ended with the realization that they could afford at the time no scandal, the common goal is, at 30 have "September 1985" at least a clean directory to work. Furthermore, to be mutually agreed that the common debtor acquire independently, so that could be produced in the market no connection between it and the common debtor, Sch. would be instructed to ensure , Who that some internal processes better in the community Debtor worked. After the presentation of the plaintiff, the capital of the community against the debtor when registering the company issued insurance has been paid at any time. Its shareholders are not in 1983 have been able to raise the capital, now they are insolvent. They are in fact only formally been members of the public debtor. The foundation of the community was made solely on the debtor and on behalf of the defendant. Purpose of its establishment had been to a collecting society for the business object of the defendant foreign textile shops to create in order to avoid the unpleasant sensation, including possible liability consequences for the defendant, which would be collected in the public and its own top management, when a million bankruptcy of the small individual commercial enterprise as the extent of the service operated by the defendant's transactions with compensation goods and the amount The thereby generated losses would become known. For this reason, the defendant, the old claims against the company, from time to 1980 from over 28 million DM in various ways away from their books and the new debt of the company amounting to around 2.8 million DM from the period thereafter in a loan receivable in a corresponding Height against the common debtor converted, which had been so immediately in debt. The shareholders of the common debtor had both the incorporation and subsequently held the position only front men pushed forward by the defendant, the reasons given above, as shareholders do not themselves have become apparent. Economically, however, is the common debtor, has been dominated in particular on the subject with their instructions Accountants page, and guided solely by the defendant. The defendant has decided not only in their home on the composition of the management of public debtor, but also interfered with individual instructions in it. The funding for the Community Debtor were provided solely by the defendant. In the years 1984 and 1985, they have bulk for this purpose. in trust a total amount of DM 11,672,564.56 made available, the latter had instructed redirected to fund the Debtor for this community. The defendant denied that the company was formed at their direction, and in their interest. The report, deed of trust was not known to her.

The first payment on the total outstanding contribution in the amount of 50,000 DM plus interest was directed action before the District Court without success. On appeal, the claimant is the action, which initially also the founder of liability for false information during the application having regard was withdrawn in view of the statute of limitations defense raised by the defendant because of a partial amount of 25,000 DM plus accrued interest. His appointment was also in terms of the maintained portion of the claim without success. The revision of the plaintiff resulted in the cancellation of the contested sentence and remand the case to the appellate court.

the reasons:

I. According to the appellate court lacks a basis for a claim for the alleged deposit requirement. Since the defendant was not formally shareholder of common debtor is that it is neither from § 19 para 1 GmbHG still committed to the § 24 GmbHG required of her deposit. An appropriate application of these provisions to the so-called man behind a shareholder must retire under the system of the GmbH Act. Moreover, it was the plaintiff has failed to demonstrate conclusively that the common debtor has been established on behalf of the defendant. This encounter, as the appeal alleges a result of success, legal under both the Court of Appeal cited aspects radical concerns.

II

first According to the jurisprudence of the Senate, any person, as so-called Hinton indirectly to participate in a limited liability company to a agent acting on his behalf, or straw man holds both for the application of the share capital pursuant to § § 19.24 GmbHG (BGHZ 31.258) and for its maintenance in the context of § § 30.31 and § § GmbHG 32 a, 32 b GmbHG ... to stand as the direct shareholder. In this case, has also joined the First Civil Division of the Federal Court ..., the Senate holds despite the contrast in the literature and from the Court of Appeal expressed concern ... and for raising capital in the result. The internal authorization of the Senate case law from the necessity in the interest of the creditor protection for an effective and practical application of conservation and to ensure adhesion of the funds of the Company, the indispensable condition for the privilege of a corporation are limited liability company's assets. The preservation of that interest would not be ensured in the same effective manner, if the holders of the Company, or, as in this case, the bankruptcy trustee as her guardian would be pointed out possible exemption claims by the man in front to the back of his man (from § § 669.670 Civil Code or contractual agreement) to be asserted. For one would do that, what are already the output decision of the Senate BGHZ 31.258, 266 f. suggests, mean that the company purely contractual legal Objections from the personal relationship between the advanced formal shareholder and the back of his exposed man saw. As a result, there is a risk that the company that may suffer under any circumstances thereby compromising the its rightful custody of capital that one has to their parties for some reason always preferred to interact not even when her partner in appearance, but the to be economically attributable to him as shareholders through an advanced notice another person, would be too short. This danger they could face in the individual case more difficult, as their often personal relationships and understanding between the people involved in any event not the individual will be known. This is especially true when the parties as it may also present, Sch especially in relation to the between the tax adviser. and agreements made by the defendant is the case, manages to conceal them. Even if these difficulties, as the literature partly explain has sought ..., according to general civil law, possibly with the aid of the supplementary application specific company law rules on the internal relationship between the parties and by making use of information requirements, ultimately should not be insurmountable, is but the objection that the way of the access (§ § 828.857 CCP) on Liberation or would result in refund claims of the straw man against his client in a doubling of the processes and foreclosures. refer to a legitimate interest worthy of protection of the background, the social order to avoid the immediate recourse to the application of the common stock on that path is not eligible to be recognized. Its needs, provided the advancement of the straw man is not in any case only the disapproved by the legal purpose of liability avoidance enough done when it is enforced by the legal recognition of the effectiveness of straw men ups possible on its payments committed man in the result, all rights of a shareholder exercise, without open to the outside to enter into such a phenomenon must. A further interest of the person who wants to make use of this option is not recognized, however. Who to another in his place for a formal legal partner of a GmbH does, while the company registered with the creation of rights and economic benefits for themselves, must in principle also associated with the production company responsible for the proper financing of the company take upon himself. This must also apply in so far as it is about whether he society on the complicated and difficult path to a seizure of the it may refer the claims asserted his front man. It is ... inappropriate in the non-thing, if that the split in a legal and public company, creating additional risks for the application of the share capital of the company, as can occur such as when the middle-man to him for this purpose in trust ceded amounts, contrary to agreement feeds on society or violates agreements, after which it will pay off for the deposit to be applied in other ways, are not borne by society, but the one "the" with the doubling of the risks as shareholders has caused.

The contrast in the literature ... mainly from a dogmatic point of view raised, certainly weighty concerns, the Senate has not mandatory. The inclusion of the economically influential people behind a nominee of their straw man, the position of a shareholder and related rights are only formally legal, but should not perform economically, it means the responsibility for the proper financing of the company ... no systemic adverse break with the principle that the law the strict requirement for the application of cost and integrity of the Guarantee Fund to the Association of the Company, and the related possibility to provide for the fulfillment of this duty concern relates to. The Senate-law does not help to make other people joined as partner responsible for the financing of the GmbH. It's much more about in relation to specific issues and legal consequences of the condition of the shareholding can not be determined on purely formal legal criteria, but according to them internally appropriate functional and economic aspects. That, as will the present case shows, the demarcation of the liable person as the man behind the circle and in the provision of evidence of a straw man may experience difficulty establishing, is the fundamental soundness such an approach, contrary to the Appellate Court of contract. Difficulties of a similar nature also occur in the legal treatment of other problem areas and, insofar as they can be overcome in a practical way, one does not preclude the other, found to be correct legal solution. True, however, is the objection that the opening of direct access to the economic background and authority in a man can only lead the formal position of a partner perceiving straw man to remain that the characteristics of indirect representation disregarded. The failure to include certain conclusions from the facts of an indirect representation justified, however, in the above described primary interest of society in the secure and practical application and ensuring the integrity of its statutory guarantee fund. The general civil law belonging, of not law in general but only in some special cases (such as § § 383 ff, 407 ff) recognized, but otherwise it is outside of the law developed legal concept of indirect representation so far not override the principles of creditor protection in corporate law to take claim for themselves. Also, a reverse inference from the fact that the legislature in the GmbH-Novelle 1980, a responsibility of the men behind only has certain tort similar conduct of the founding law (§ 9 para 4 GmbHG a) specifically ordered, but no provision for such general system for the rest of the capital security interest would not be justified. Reversible circuits of this type require a systematic and complete penetration of the total matter by the Legislature, which can not be assumed without further notice. In the present case against the admissibility of such conclusion is already speaking of the fact that the amendments lawmakers, the Senate decision was known BGHZ 31.258, which - though probably only incidentally and secondarily - the liability of the man behind even explicitly on an analogy to the current § 9a para 4 GmbHG the company law provisions of § 39 para 5 AktG (now § 46 para 5 AktG) was based. However, the, stories-law one of these corporate law provision similar provision in the form of § 9 is a par 4 GmbHG first time in the right of the GmbH introduced without giving to understand in any way, that he it by the case of the Senate drawn consequences for the general obligation capital raising disapprove. The designated closing would otherwise contrary to the fact that it's declared aim was the short story, its most existing creditor protection in the GmbH does not restrict, but on the contrary develop. In this situation the existence of § 9 is a par 4 GmbHG any case not designed to refute the accuracy and admissibility of the Senate law ... Finally, it appears the Senate also not entitled to define the circle of persons responsible for raising capital other than for the preservation of capital pursuant to § § 30.31 and § 32 a, 32 b GmbHG where largely by the Senate-law critical of available literature, the inclusion of indirect shareholder is deemed to be correct and appropriate ... The fact that it is regularly in the capital maintenance services which the man behind as a result of its property indirect shareholders of the bound for the benefit of creditors of a company share capital of the Company receives as it is to raise capital for the initial breakdown of this capital stock, such a distinction in the opinion of the Senate can not be justified. In both cases the existence of the (joint) responsibility of the man behind both on his position as an indirect shareholder, which is justified by the fact that, by the formal legal owner holds the shareholding in its interests and in accordance with his instructions, special powers, if not the possibility of control of the Company, has a special relationship not only create his intermediary, but also to society itself, which justify its integration into the responsibility for the proper financing of the Company. In this perspective, a fundamental distinction of persons liable inappropriate. How little would be appropriate that such differentiation is shown by the non-internally legitimate scoring contradiction which would serve to let the man behind because of his alleged lack of responsibility for the liability fund of the company from liability as long as he has not made a capital contribution to make him liable on the other hand, if he would repay him the provided inserts, although it Only the state would be economically recovered that existed prior to the deposit performance. It follows that it should be noted the fact that the person used in particular in the context of a fiduciary relationship to the establishment of limited liability a middle man who is merely formal, but not economically fill the position of a partner, in the interest of efficient and practical security of the liability fund GmbH take indirect shareholders for the proper application of the Guarantee Fund of the GmbH as well as the responsibility for its subsequent maintenance.

second The revision should also result in so far successful, as it challenges the view of the Court of Appeals applies, the applicant had not a foundation of common debtor on account of the defendant conclusively demonstrated. Under the current status of the process is not excluded that the defendant as a shareholder of the common debtor must be treated.

The plaintiff in describing the economic background and the purpose of the establishment of the common purpose of each Debtor to prove inaugural explained in detail that the common debtor has been established exclusively in the interest and at the instigation of the defendant and operated in accordance with their instructions. Does this lecture is to introduce, as the appeal instance, too, so must the defendant with the associated establishment and operation of the common debtor burdens is also in so far as concerns the payment of the outstanding capital contributions.

After the later to be postulated facts, the common debtor solely as a tool of the defendant to technical accounting rearrangement and concealment, was possibly founded even removal of their high debts from the previous connection with the individual commercial enterprises as well as to the continuation of business and out. Although Sch. the wording of the closed community in establishing the debtor trust agreement only his associates as trustees and not the defendant, he had to the specific individual requirements perform this contract his company created solely in the interest and on the instructions of the defendant and not his alleged settlor. As a result of this construction thus makes Sch. in relation to the exercise of shareholder rights as trustee of the defendant. Moreover, since the co-partner as a result of its small holdings and in the trust agreement also set out performance of all shareholders' rights in general Debtor solely by Sch. all with the position of a member usually associated powers were taken, ruled the defendant debtor in the community far beyond the level of scrutiny, which outsiders creditors to secure allow their loans fall, out like a 100%-owned subsidiary (the financial responsibility in such cases references omitted 81.311, 315 f. and last Sen.Urt v. 16 December 1991 -. II ZR 294/90, WM 1992, 270 , 272 m. from the extensive w. Nachw Senatsrspr.), without taking this to the outside and a corresponding economic event as shareholders. From this dominant influence, the defendant, as the applicant has submitted further demonstrate the start made in the following period will actually use. In addition, the common debtor is in accordance with the objectives with its founding purpose and the economic results alone on behalf of the defendant been held. Under the terms of the trust agreement, their earnings substantially for the removal of the demands of the defendant from the previ against business relationship with the company as were used. At this event it is able to substantially change anything that came from the profits of the common debtor also the controlling shareholder, as should be corrected and the satisfaction of the defendants also indirectly benefited him because he at the request of the defendants in 1981, a guarantee for these demands took over. Contrary, it is this fact that the common debtor, with their nominal, also never paid up share capital of 50,000 DM at any time for leadership their statutory business operations would have been able to during their entire existence has been financed exclusively by the defendant, the purpose by the proven argument of the plaintiff in the years 1984 and 1985 a total amount of spent more than 11 million DM and therefore in every relationship with the business risk borne by the public debtor.

contrast, it is not important that the facts alleged by the plaintiff has some of the typical trust deed may be different. Thus, the plaintiff can present no agreement, which required the defendant to Sch. by him through the acquisition a shareholder of the common debtor to exempt particular through the provision of a capital contribution, costs. Under the terms of the trust agreement submitted to it should receive reimbursement for expenses, but by example and the extent of approved remuneration for the exercise of shareholder rights directly from the common debtor. Further, missing from the contract, an agreement which the defendant has the right of Sch. to require the transfer of the escrowed by this company participation. These characteristics are not likely to influence assessment of the position of the defendant as an indirect shareholder of the Debtor in common significant way. The Absence of the latter obligation declared, unless it was merely based on the fact that the plaintiff's internal arrangements are not known, under which Sch. Debtor's position in the community became a trustee of the defendant, already from the selected design, as trustee of Sch. disclosed contrary to the factual and legal power structures in the common debtor not the defendant, but its totally without influence co-partner B., as well as from the fact that the defendant could not be interested in the common debtor in achieving the objective of its founding purpose of the open position a partner to take over. The Interest of the defendant, its dominant position in the community Debtor during the period of its existence, not to look at risk and to use the common debtor solely for their own purposes, was sufficiently protected by being Sch unrestricted supremacy of her trustee. and to use the commitment to the profits of the Company substantially to pay off their debts, in the Trust Agreement and as binding on his successor in fixed and a termination of the common debtor had ruled without their consent. Nor can the legal Beureilung depend of the facts in point in question ultimately of whether the defendant Sch. a formal commitment has given him the refund directly from him and initial contribution, or if Sch. should stand up for these indirectly over the years from the paid to it from the (also of the defendant applied) assets of the common debtor compensation paid for the exercise of shareholder rights. The same would apply a fortiori if the parties had agreed to refrain from the performance of the working capital of the common debtor in any case meaningless capital contributions at all, what could speak, that, even though they in amount in addition to the defendant to fund operations deposited large sums of money in any way side were, throughout the life of the company were not paid. Vital for determining the dispute must be in the result to be alone, whether the defendant is in accordance with the pertinent argument of the plaintiff on both founded by her in the formal legal position of shareholders advanced straw men a society in terms of their financial resources and substance and their Economically speaking, results and was even related to them and their operations, they Sch those it has chosen, this position concealing legal construction by means of the bound by its shareholder. in all respects as a single shareholder controlled and dominated. Should turn out that the common debtor is in this sense, ultimately, economically and legally an event of the defendant, it is justified to her as the indirect shareholders regardless of the chosen legal structure through which it has avoided legally open in its true role alone the company created to appear, pay the cost required for the application of the statutory share capital.

Pokemon Orange Gpshpone Cheat

straw man-the man behind-liability: BGH II ZR 225/91

Austin Tx Best Plasma

Federal Court to prove the payment of capital contribution by the GmbH company

Naturalis Milia Treatment Canada

sale of individual shares

Wenger Laptop Backpack

advice for self


crisis counseling for self-

you threaten a business crisis or if you are already the middle of it? If your bank is now your daily conversation partner? Or threatened with bankruptcy? Unfortunately, companies often look for in need too late advice and help. Therefore: Please register early so that your options are not yet completely restricted! Only then we can help you effectively! Our consulting team is there to help.

In a crisis situation, it is often difficult to maintain a "clear" head and "thread" not to lose. In addition to the massive pressure from the outside (creditors, banks, offices, etc.), the threatened loss of livelihoods, take these problems very often in the private sector. Eventually, the existing situation will only be perceived as a "mess", which one is helpless.

you should not be afraid to consult and seek external advice. The longer you wait, the less experience, your own freedom of action.

In a free, no obligation initial consultation we discuss your situation and provide first assistance. Call us or send us an email.

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crisis counseling for self


Insolvenzverschleppung bankruptcy and compulsory

The crisis counseling by professionals and freelancers regularly comes to the question: Do I file for bankruptcy and I do not punishable because Insolvenzverschleppung?

What many self-ignorant of the bankruptcy period due to indebtedness and / or insolvency only applies
corporations under German law, GmbH, AG, KGaA
partnerships without an individual as the general partners, eg GmbH & Co. KG
also may be a requirement for bankruptcy for cooperatives and registered societies. Even for companies under foreign law, for example, the Limited, bankruptcy may be a requirement.

In these cases, the requirement to submit to take very seriously. The deadline of three weeks of the start / knowledge of insolvency maturity is observed. Bankruptcy Legal and tax advice is recommended. Failure to observe may result in civil and criminal liability consequences for the managers and directors, including a piercing the corporate veil in private assets.

However, there is no insolvency requirement for freelancers, sole traders and partnerships with a natural person as general partners. In

even in these cases should be done before a strategic bankruptcy-depth information and advice. The question is then:

bankruptcy or not and if so, to what end. Remediation, continuation or liquidation.

insolvency proceedings reasons

The Insolvency Act as amended provides for the following opening arguments in:


The insolvency under § 17 InsO

The debtor is unable to meet the due payment obligations. Applications may be debtors and creditors. Applies to all forms of business, even for individuals.


The threat of insolvency Insolvency Act § 18

Imminent insolvency occurs when the debtor expected to meet its liabilities can not. However, only the debtor is eligible to apply itself exists


indebtedness pursuant to § 19 InsO

indebtedness if the debtor's assets no longer cover the existing liabilities. Applications may be debtors and creditors. Applies to all types of companies, natural persons.

Additional materials required to file for bankruptcy, visit the websites of the GIB for the rehabilitation counseling

http://sanierungsberatung.gib-nrw.de/insolvenzantragspflicht


legal bases

§ 64 GmbHG - insolvency duty

(1) If the company is insolvent, the directors have no undue delay to request no later than three weeks after the onset of insolvency, the insolvency proceedings. This applies, mutatis mutandis, if an indebtedness of the company results.

(2) The directors are committed to the Company for any payments that are made as to the insolvency of the Company or to establish their indebtedness. This does not apply to payments that are consistent even after that date with the diligence of a prudent businessman. To the compensation claim, the provisions in § 43, para 3 and 4 of these Rules.


GmbHG

§ 84 (1) A prison sentence is punishable up to three years or a fine, whoever it

first Managing Director fails to notify the shareholders a loss of half of the share capital, or

second Managing Director contrary to § 64 paragraph 1 or as a liquidator, contrary to § 71 para 4 fails, insolvency or indebtedness to request the opening of insolvency proceedings.

(2) If the offender has acted negligently, the punishment shall be imprisonment of up to one year or a fine.


§ 92 AktG - Board of duties in case of loss, insolvency or bankruptcy

(1) If in preparation of the financial balance sheet or interim balance sheet or is likely to dutiful discretion, that a loss equal to half of the capital stock is given, the Executive Board shall immediately convene the Annual General Meeting and their indicate this.

(2) 1 If the company is insolvent, then the Board without undue delay to request no later than three weeks after the onset of insolvency, the insolvency proceedings. 2 This applies, mutatis mutandis, if an indebtedness of the company results.

(3) 1 After the insolvency has occurred in the company or its indebtedness has shown the board may make any payments. 2 This does not apply to payments made after that date are compatible with the care of a diligent and conscientious manager.


§ 1980 BGB - request to open the probate proceedings

(1) If the heir of the insolvency or indebtedness of the estate to its attention, he must apply immediately to the opening of the probate proceedings. If he violates this duty, it is the creditors for the damage arising therefrom responsible. In determining the adequacy of the estate remain the liabilities and obligations of legacies out of consideration.

(2) The knowledge of the insolvency or indebtedness is based on negligence, the ignorance of the same. Than negligence, it is especially true if the heir, the levy of estate creditors not sought, although he has reason to accept the presence of unknown estate liabilities, the banns is not required if disproportionate the costs to the amount of the estate opposite.


Insolvency Act § 13 - Opening Form

(1) The insolvency proceedings are opened only on written request. Applications can be submitted to creditors and the debtor.

(2) The application may be withdrawn until the insolvency proceedings or the claim is finally dismissed.

(3) The Federal Ministry of Justice is authorized to establish by regulation with approval of the Federal Council on the application by the debtor in a form. Except as established by Theorem 1, a form that the debtor must use this.


Insolvency Act § 17 - Insolvency

(1) General Opening reason is the inability to pay.

(2) The debtor is insolvent if he is not capable of the due to meet payment obligations. Inability to pay is to accept the rule if the debtor has stopped making payments.


Insolvency Act § 18 - Imminent insolvency

(1) If the debtor of the opening of insolvency proceedings, it is also the looming insolvency of the opening base.

(2) The debtor threatens to become insolvent if it is not expected to be in a position to meet the payment obligations existing at the time of maturity.

(3) In case of a legal person or a company without legal personality of the application by all members of the representative body, all personally general partners or all liquidators identified, paragraph 1 shall apply only if the applicant or the representative of the legal person or the company are entitled to.


Insolvency Act § 19 -

indebtedness (1) A legal person is also the opening of indebtedness due.

(2) indebtedness exists if the debtor's assets no longer cover the existing liabilities. The assessment of the assets of the debtor, however, the continuation of the company shall be taken if this is more likely in the circumstances.

(3) If at a company without legal personality not a general partner is a natural person, paragraphs 1 and 2 accordingly. This does not apply if the general partners is a different society in which a general partner is an individual.


Supreme Court case law

defining the insolvency of the Zahlungsstockung

BGH, Judgement of 24 May 2005 - IX ZR 123/04

Insolvency Act § 17, § 64 para 2 GmbHG

a) A mere Zahlungsstockung is likely if the period is not exceeded, the credit-worthy requires a person to borrow the funds needed . For three weeks were necessary but also sufficient.

b) if one within three weeks was not eliminated liquidity gap of the debtor less than 10% of its overdue total debt is regularly ability to pay must be considered unless it is already clear that the gap will soon reach more than 10%.

c) if the debtor's liquidity gap of 10% or more, is regularly assumed to default, unless an exception is not to be expected beyond reasonable probability that the liquidity gap soon completely or almost completely be eliminated and will be expected to creditors with a expectant upon the particular circumstances of the case.

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Insolvenzverschleppung and insolvency duty

round and forth ways of rent between spouses - FG Dusseldorf from 25/06/2010 - Az 1 C 292/09 E 13th
October 2010
for tax approval of a lease between spouses is crucial that the lease will be completed as agreed. The Tax Court Dusseldorf rejected the recognition of a rental agreement between a doctor couple, rented by the husband of an extension to the combined private practice rooms to house as his wife.

addition to some inconsistencies in the rental agreement, the court objected in particular, that the tenancy has been carried out as agreed. On a closing of the agreement lacks any event, if the rent - as in the dispute - to the entrance is immediately paid back to the tenant without the landlord is obliged to do so on other legal grounds.

Case FG Dusseldorf from 25/06/2010
file number: 1 C 292/09 E
PFB 2010, 198
NCA 2010, 2196

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Hin - and forth statement of the rent between spouses


dangerous support of the employer
- FG Berlin-Brandenburg of 16.03.2010 - Az . 6 K 1328/05
14th October 2010
workers should be careful when they attack their employers financially under the arms to get their jobs for example, by providing a guarantee for loans to the employer.

In the Tax Court of Berlin-Brandenburg case decided by the employer, a worker placed a guarantee on almost four times the amount of his annual salary. It should also be with a 25 percent shareholder of the GmbH. For entry into the GmbH as a partner, however, saw no more, because the LLC had to file before registration in the register of insolvency. At the launch of the employees of the lending bank under the guarantee claim, he wanted the payments at least as its cost - make GmbH contribution is tax deductible for - did not materialize. This rejected Financial judge from.

Since not more of the workers as shareholders reached the target, was left for him the opportunity to declare their payment as a cost. Also a claim as a business expense was due to the same agreed entry into the company as a shareholder of the question. That this because of the bankruptcy could not be performed, played with the tax assessment does not matter.

Court of Berlin-Brandenburg of FG 16/03/2010
file number: 6 K 1328/05
DStZ 2010, 509

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dangerous support of the employer

loan repayment of shareholder
manager

to yourself - Federal Supreme Court of 26.10.2009 - II ZR Az 222/08 4th May 2010

§ 43 para 2 GmbHG the GmbH is a claim for damages against the manager who authorized illegal payments to themselves. Order is an unwarranted payment is not when a single shareholder-GmbH and managing directors granted by him to repay loans the company itself. This is true even if the loan was not previously meet the contractual agreement terminated in due time. With the implementation of the payment order, the sole shareholder and managing director implied in respect of the notice period waived. The repayment in such cases is only permitted if they violate legal Rules for capital maintenance violation. BGH 26.10.2009
Reference: II ZR 222/08
Operation 2009, 2650
ZIP 2009, 2335

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GmbH sole shareholder and managing director


sale of individual shares
- BGH of 19.04.2010 - II ZR 150 Az / 09
second October 2010
After 1 November 2008 which came into force to Modernize the law and to combat abuses (MoMiG), the shares are numbered on the list of shareholders. For a transfer can be made to the respective serial number of the transferred partnership interest.

If the numbering at a "Former company" has not nachgetragen, this may in the event of sale or transfer of a share may be problematic. Effective transfer is namely only if the transferred share is precisely determined, or at least determined. This must be notarized in the appropriate agreement must be ensured. If a shareholders more shares, not all of which are sold for the identifiability words such as "... the sold shareholder of X due to a notarial deed before a notary Y (certificate number) acquired business share of Y ..." recommended.

BGH from 19.04.2010 Application Number: II ZR 150/09
GmbHR 2010, 918
NZG 2010, 908

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sale of individual shares

reporting requirement for registered office of a

GmbH - BGH 02.06.2008 - Az II ZB 06/01 first November 2008 Threading a limited liability company based in another county, in any case before the competent Court of Registration to be known, this is the initiation of a complaint and resolution procedure according to § 144a para 4, 2nd Alt. FGG entail. The discrepancy between actual and its registered office represents a subsequently incurred Statute deficiency which can lead to the dissolution of the Company.

BGH 02.06.2008
Application Number: II ZB 01/06

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Stuttgart 21: Clear evidence of planned attacks

The 'Bloody Thursday' was intentional

By Karl Weiss

now crystal clear evidence of Merkel and Mappus that their political destiny "Stuttgart21 "tied to have had, really the" bloody Thursday ", as there is now the 30th 9. is called the 2010, just as intended. It is proved: There were no provocations or attacks by demonstrators, but all martial unit of the police was already before the arrival of the student demonstration on the spot. Continue reading ...
http://www.youtube.com/watch?v=E7FaM4yy2-I&feature=player_embedded #!

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Stuttgart 21: Clear evidence of planned attacks


something special here!

From: MPs Watch

Ole von Beust, the Hamburg and Roland Berger network
written on 04/10/2010 at 22:09 in General, Lobbying, transparency of Martin Reyher

Carl-Friedrich Arp Ole Freiherr von Beust is a man of principles . Almost nine years he served his native city of Hamburg was the first mayor, before he announced his resignation in July. To Beust'schen principled one example, the taxpayer is not at the age of 55 years "to lie on the bag," even though he already had pension entitlements of kanpp 10,000 euros. His bread will the former mayor earning for the first time itself.

As the magazine Focus reported recently, Ole von Beust has now found a new employer: As a "Senior Advisor" to the mayor to use AD for the consulting firm Roland Berger this month on his knowledge and contacts in politics and business.
One wonders, however, why this is necessary at all, because the contacts from Roland Berger to elites in government, business and science in the Hanseatic city are already excellent:
* Elbphilharmonie: "Not more than 95 million €" should the controversial major project originally cost the taxpayer, now there are 323 million Euro. The contracts with construction company Hochtief Hartmut Wegner had worked, a former project manager at Roland Berger. After his departure at the consulting firm he joined in 2002 the urban project implementation company ReGe responsible for the construction of the Elbe Philharmonic. In 2004, Wegener also project coordinator "Elbphilharmonie" of the Senate Beust. After several failures, bad luck and mishaps around the big project he had to take at the 2008 ReGe his hat.
also elsewhere encountered in the Elbe Philharmonic Hall in the name of Roland Berger. Their consultants assessed "in a" Pro-Bono Campaign "" the economic viability of the Game operations and made recommendations for the organization of the Operating Company from ". Furthermore, recommended the Berger-people included the creation of an Elbe Philharmonic Foundation (pdf). A manager was quickly found: Wibke Kähler-Siemssen, the previous four years Senior Consultant at Roland Berger.

* Science Senator Jörg Dräger (2001-2008): Also Dräger once stood at Roland Berger's contract (1996-1998). 2007, the nonpartisan research Senator awarded a contract for the creation of a 200,000 euro expensive city marketing concept for the so-called "Talent City of Hamburg" (pdf) - to his former employer Roland Berger. It was striking that the cost for the study was just below the sum, from the EU-wide competition is needed (pdf). At the end of the cost of tender then climbed still subject to border: Roland Berger, the Hanseatic city sent a total bill of € 239 400 €, additional market research with "valuable insights" were necessary, it was called in support.

* University of Hamburg: On 1 December 2006 (pdf) came Katrina Vernau to her service as Chancellor of the University of Hamburg - they, too, a long-standing consultant Roland Berger, as can be read on the company's Web site. Together with two other people had Vernau Berger-two years before the consulting firm blv Founded consult, for which they 31 December 2006, then worked during her time as a university chancellor, as executive director. To consult the website of blv it says: "As a long-term employees by Roland Berger Strategy Consultants (www.rolandberger.com) in the" Public Sector / Non-profit organizations, "the company we are still on friendly terms. We maintain close contact with the Hamburg office and especially to Dr. Burkhard Schwenker, Chief Executive Officer. "(Schwenker, it was the way, Ole von Beust to Roland Berger took.) A possible conflict of interests of the Chancellor joined the Senate in a letter of 2007. Guarantor (pdf) is the supervisory authority by science. Their former boss: Ex-Roland Berger-Jörg Dräger, who had let himself will keep asking questions about a possible conflict of interest (pdf). The president of the University of Hamburg is connected to Roland Berger. Together with the company's founder sits Dieter Lenzen, changed in March 2010 from the Free University of Berlin in the Hanseatic city, the Board of Trustees of the Roland Berger Foundation.

* Hamburg Tourismus GmbH: On behalf of the urban marketing company Roland Berger created in early 2010 a study (pdf) on target groups that are tasty as Hamburg Attraction should be done.

* Hapag-Lloyd: Also in need of Hamburg-based company has taken the Roland Berger consultants for expertise just the latest under the microscope. "To assess the long-term prospects, we have given an opinion at Roland Berger in order," the former mayor of Beust said in July 2009 in an interview. The city of Hamburg is co Hapag-Lloyd. * Financial

Senator Carsten Frigge: The former State Economic and current finance minister was 1995-1997 in the management of Roland Berger & Partner. Some contacts from the consultant time have survived to this day, such as the Chairman of the embattled HSH Nordbank, Hilmar Kopper, to do with the finance minister of its own motion regularly added. "I've known him a long time in my consulting work at Roland Berger," Frigon told recently in an interview with the Hamburg evening paper, "as we have advised the German bank and he was CEO there. And the contact continued in private. "Later, Frigge benefited from the acquaintance of his Berger-time and professionally. As in 1997 from the management at Berger and retired self-employed with the consulting firm C4, made Kopper was the first customers.

The Practical in the musical chairs game up between politics and business advice: Everyone knows everyone, and probably often also estimated. This is the basis for the views of the benefits one of the contacts of the other and vice versa. Last year, as company founder Roland Berger was personally manage for the grand coalition, the Opel-rescue, were interesting for the Federal Government in "his national and international contacts." Conversely, Roland Berger secured in the summer of 2009, the services of the CDU politician Friedbert Pflueger, who sits as a member of the Berlin State Parliament and formerly one group chairman and top candidate of his party. For Consulting Services Pflueger EU should establish a department for which his contacts safe than current board member of the European People's Party (EPP) and a former Chairman of the European Committee in the Bundestag are not the worst condition.

So now replaced Hamburg's mayor Ole von Beust ex-pages. "Revolving door" effect of this smooth change of leaders between politics and business is called - a practice that not only since former Chancellor Gerhard Schröder (to Gazprom) and ex-Economy Minister Werner Müller (to RAG AG) is known. The problem with it: A specific interest group is given privileged access to political decision-making. The Organization Lobby Control described the problem this way:

former top politicians are in for companies as lobbyists, consultants or members of the board or supervisory board so popular because they bring two priceless resources: first, detailed knowledge of internal processes in the political process and secondly still warm contacts with policy makers. In order to secure the company a special access to policy, it priority over other interests. The chat with former colleagues, politicians ... can be worth more than pages of comments and input at hearings.

Beust's future work should be for the clients of Roland Berger precisely those "close contact with international thought leaders in politics, business, industry organizations, academia and the relevant media" produce, which promotes the consulting firm on its website.

Against the background of the personnel exchange between policy makers and consultants revealed another problem. The federal and state governments now often draw back to the external expertise of private consultants. But the Hamburg state government, Ole von Beust has awarded over the past two and a half years, 98 reports to external companies, as a Senate response to an inquiry by the Left Party, brought to light (pdf) (Roland Berger received no instructions at this time). If - as at the federal level - sometimes by millions of orders from authorities is to compete with the many consulting firms are the contacts of former politicians to their former place of activity, at least no competitive disadvantage in the Auftragsaquise.

the accusation that some consultancies will be preferred for procurement by public authorities, there are always. CDU and CSU have it from the Schroeder government's action, which is said to have concluded between 1999 and 2004 24 consulting contracts to Roland Berger (pdf), including only 19 by the Federal Ministry of Defence. The former Lower Saxony Minister President Christian Wulff 2004, threw his predecessors Sigmar Gabriel and Gerhard Schröder, they can be written by Roland Berger report complacency, where the fee has been patched to advertise the jobs do not. And finally, the aforementioned contract of Beust's science advisor and former Senator Jörg Dräger fell to his former employer under the suspicion of nepotism. Roland Berger was commissioned as a result of so-called "restricted tendering", an invitation from the selected consultants to submit an offer. Senator Dräger was how after a parliamentary inquiry by the opposition out, the chairman of a board that awarded the contract finally Roland Berger. Surprised asked the opposition (pdf), "what qualifies as Roland Berger so in terms of universities to act. Otherwise it has always done the CHE ... "

these days is now former mayor Ole von Beust his work in the Hamburg office of Roland Berger. If he does not disappoint his new employer, he should in future hold quite a few chats with former political colleagues.
Photo: ES Myer / Wikipedia / CC

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Ole von Beust and Roland Berger, the Hamburg-network processing companies



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Totgesagte longer die
Wednesday, 13.10.2010, 10:59 · FOCUS-Online-author Florian Flaig
Until the final closure of a company it is is a sorrowful way
insolvencies it daily, but the arrangement of company usually takes years. The death of a company in the media is short and painful, but in truth, long and quiet ....
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penalty amount for tax evasion

The Federal Court has now in a landmark decision - possibly with a view to the forthcoming criminal proceedings in connection with tax evasion in Liechtenstein - a fundamental decision as a punishment for tax evasion and evasion of contributions please.

The defendant had employed several black workers and for discharged neither income tax nor social security contributions. He gave no sales tax returns. He also supported the sales tax to its clients through the procurement of bogus invoices, so that they could deduct the payments made to the defendant as business expenses and make a deduction. The fiscal damage caused thereby and the lack of the social security contributions were, respectively, a total of almost one million €. The district court had sentenced the accused Landshut for tax evasion and contribution evasion to a term of imprisonment of one year and 11 months without parole. The Federal Court took the revision of the accused, which was discarded to make fundamental explanations for criminal amount of evasion. In a tax evasion is the height of the amount as a sentencing factor of particular weight. The fiscal damage, therefore, largely determined the amount of punishment. The Federal Court referred to the provisions of § 71 para 3 of the Tax Code, which provides that fraud on a large scale usually only punishable by a penalty of six months to 10 years are eligible.

A large extent, runs the Supreme Court, lay before then if the tax loss was higher than € 50,000. This means that each with a six-figure fraud amount to impose a financial penalty only when there are weighty mitigating circumstances could still be punishment appropriate. In evasion amounts in millions of dollars a suspension capable of imprisonment come only when there especially weighty reasons for reduction or considered. Even with a million amount an errand in the penal procedure is not normally appropriate, since only a custodial sentence of up to one year, that enforcement would be suspended on probation could be imposed. The calculation of the amount of contribution evasion under § 266 StGB in undeclared work is governed by the new statutory requirement in § 14 section 2 SGB IV After the payment of wages is not black, as at present - for the calculation of social security contributions - as a gross agreement, but as the net wage agreement with the result that the money paid work Sent to a gross wage would gross up. This leads to a consequence that the fraud amount significantly higher than assuming a gross wage dispute. BGH, Judgement of 2 December 2008, 1 STR 416/08

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penalty for tax evasion amounting




Anusinspektion the Accountants

26th February 2009 A study in the intimate area with detainees is constitutional only if concrete suspicions, notify the Federal Constitutional Court in the press release Press release No 16/2009 of 26 February 2009:

The complainant, an accountant, was in the morning at seven clock when he took his children to school, on suspicion of bribery and embezzlement to the detriment of professional supply plant arrested for lawyers and taken into custody. According to him, he had to leave at admission Stripping in the custody and examined by prison officials in the genital area (Anusinspektion). Opposition and remained here to request a court decision without success. The Hanseatic Higher Regional Court considered that the measure is legitimate. The general arrangement, incorporating new prisoners to be investigated accordingly, to preserve the order of the correctional facility (§ 119 para 3 CCP) have been necessary, namely to prevent diversion of drugs, money or other prohibited items were smuggled in or on the body hidden. While the subsequent constitutional complaint was successful. The 3rd Chamber of the Second Court noted that the right of the complainant was injured:
is this the Court of Appeal but assumed that the introduction of drugs and other prohibited items into prisons a serious threat to the discipline of that institution represents. It has neither the specific weight in the present case affects fundamental legal concerns nor the specific restrictions sufficiently taken into account, the result for the admissibility of invasive measures in the enforcement of custody from the general-clause-like nature of the engagement authorization of § 119 para 3 Code of Criminal Procedure, and the specificity of custody.
interventions that affect the genital area and the shame of the detainee, can not be avoided in principle in law enforcement custody. The prisoner in that regard but is entitled to special consideration. The fact that administrative procedures are easier without eingriffsvermeidende considerations have, here is even less suitable as in other less sensitive areas to justify the waiver of such considerations. This is in tougher measures for intervention during investigation that will be imposed on the basis of mere suspicion.

By the Higher Regional Court by the complainant in the circumstances of the case has not appreciated, but is considered the measure in question is at the commencement of detention and independently admissible on the circumstances of the case, it has the moral rights of the complainant (Art. 2 para 1 in conjunction with Article 1 paragraph 1 GG) is not sufficiently taken into account. In addition, the court also possible to be lenient as the embodiment of the procedure commonly practiced, according to the judicial authority, not the shame less intensive contact with the implementation of any inspection of body cavities by a doctor or health care professional being considered.
Federal Constitutional Court, decision of 4 February 2009 2 BvR 455/08

It's not believed, if one has not witnessed or reported serious source gets. An accountant who brings his children to school, and the offense is a fortune to load sets provides for the detention center is the same dangers as a drug courier on the way to "work", where you trade with Accused of narcotics.

heard somewhere on it. It's just unfortunate that this has to pour only the Federal Constitutional Court in a decision, and the prison management something not even aware of it.

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Anusinspektion the Accountants

traffic control on 15th Texan June 2009
Near Austin, Texas, stopped the 72-year-old woman for speeding. According to the police, there was a fierce war of words. After several warnings, the officer fired his Taser at the woman.

a hero, these police officers, a real hero. I am impressed by the human value of this public servant. And by his courage. Congratulations.
Thank you to the thunder cat for the hint. crh


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