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.

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