Can I register a limited company?
GmbH - limited liability company
The minimum share capital of the GmbH must be EUR 25,000 and be made out in full euros. The minimum amount for the individual capital contribution is EUR 1. It is permissible for one shareholder to take over several company shares when the company is founded. A division of business shares is largely unrestricted. The articles of association must show the share capital as well as the number and nominal amounts of the individual shares. In the case of financial investments, the company may only be registered for entry in the commercial register if a quarter of the nominal amount has been paid for each share. In total, at least half of the minimum share capital (= EUR 12,500) must be paid up. When registering the GmbH, the managing directors must assure the registry court that the corresponding amounts are freely available to them. Any remaining part of the contribution is due by a corresponding shareholders' resolution or - if the partnership agreement provides for this - at the request of the managing director. If contributions in kind are to be made (e.g. machines or other assets, possibly also an entire company), the object of the contribution in kind and the nominal amount of the share to which the contribution in kind relates must be specified in the articles of association. The value of the contribution in kind must be presented by the shareholders in a report on the formation of the company in kind. In the case of not insignificant overvaluations, the registry court can carry out a control of the intrinsic value of the contributions in kind.
Property of the Company
In the articles of association, the object of the company of the GmbH is to be described in such a way that this enables a concrete idea of the company's field of activity. B. Retail sale of furniture, manufacture of lighting fixtures. If the company's activity requires a permit under public law, e.g. B. restaurant concession, entry in the trade register or trade license, documents do not necessarily have to be available when the GmbH is registered for entry in the commercial register so that the entry procedure can be carried out. However, the company is not (yet) allowed to carry out its activities without the required approval.
There is a great deal of leeway when choosing the company of the GmbH. Both a personal company (with at least the family name of at least one partner), a factual company (with information about the object of the company and also an individualizing addition), as well as a company formed purely from imaginary names or a combination of several of these types of companies (e.g. B. Müller Stahlhandels GmbH) is permitted. In any case, however, the company must be suitable for identifying and individualizing the company. This means that z. For example, a specialty company may not consist of just one or more generic terms (e.g. Autohandels-GmbH), because general technical and industry terms may not be "monopolized" in favor of a company and they also do not characterize a specific company.
The legal form of the company of a GmbH must also clearly emerge. The use of the abbreviation "GmbH" is permitted - because it is well known. No part of the company may contain information that is likely to mislead about essential business relationships. Admissibility requirements for the entry of a company in the commercial register are also the ability to distinguish between companies already registered in the same local area. However, the registry court does not check whether third parties can raise competition, trademark or name-related objections to the company name. The risk of having to change the company later for such a reason can be reduced through research - e.g. B. on the Internet - can be reduced, but ultimately never completely excluded.
In principle, the liability risk of the GmbH shareholders - even in the event of insolvency - is limited to the shares or shares taken over and personal liability with private assets is excluded. Insofar as shareholders have not yet made their contribution, their liability in the event of insolvency is limited to the amount still outstanding. But be careful: the limitation of liability does not apply until the company is entered in the commercial register. In the case of liabilities established before this point in time (i.e. those of the "GmbH in formation" or "i. G."), creditors also have the option of accessing the private assets of the shareholders. Because before the entry in the commercial register, the GmbH does not yet exist as a legal person. Also with their private assets, GmbH partners must enter into cases of so-called direct liability. These are exceptions. Penetration liability can, however, z. B. in the case of an abuse of the corporate form, a mixture of private and corporate assets as well as an existence-destroying intervention by the shareholder at the expense of the GmbH.
Preservation of the share capital
In principle, the company's assets required to maintain the share capital may not be paid out to the shareholders. Exceptions to this prohibition exist if the payment is a service under a domination or profit transfer agreement, the return of a loan or a service that is covered by a full counter-performance or return claim against the shareholder. Paying back and forth is only permitted under similarly strict conditions. This is the case when the contribution made by a partner flows back to the partner as agreed. In such a case, the deposit is only deemed to have been effectively made if the company has a full refund claim that is due at any time and the registry court was also notified of the agreement of the back-and-forth payment when registering. In the event of insolvency, shareholder loans are generally - and not only if they are a capital substitute - only satisfied after the other claims of the insolvency creditors. The only exceptions to this principle are the so-called restructuring privilege and the privilege for small shareholders (for non-managing partners with no more than 10% equity stake). Losses from the company's activities can reduce or consume the originally existing capital of the GmbH. If a balance sheet shows that half of the share capital has been lost, a shareholders' meeting must be called immediately.
Every GmbH must have one or more managing directors as body (s) in order to be able to act. The managing directors are determined by the shareholders' meeting. They are responsible for managing the company internally and for representing them externally. Shareholders can only represent the GmbH if they are also managing directors. If managing directors do not follow the instructions of the shareholders, they can be called internally accountable; However, restrictions on their power of representation are ineffective with regard to third parties. Anyone who has been convicted of an insolvency offense or delayed bankruptcy, has received at least one year imprisonment for fraud, breach of trust or withholding and misappropriating wages or who has been prohibited from exercising a profession, branch, trade or branch of trade by a court or administrative authority can at least for not be appointed managing director of a GmbH for a few years. Upon request, the managing directors must immediately provide each shareholder with information on the affairs of the company and permit inspection of books and documents. Exceptions to this can only be provided by a law, e.g. B. if it is feared that the inquirer will use the information provided for purposes outside the company and thereby cause the company or an affiliated company a considerable disadvantage, but not the articles of association. If the company becomes insolvent or if a balance sheet shows that the company's actual assets no longer cover the debts (“over-indebtedness”), the managing directors must immediately apply for insolvency proceedings to be opened if they do not want to expose themselves to the serious accusation of delaying insolvency. If a GmbH has no manager, declarations of intent can be effectively given to each individual partner. The obligation to file for insolvency in the event of insolvency then also passes to the shareholders. The managing directors of a GmbH that is subject to co-determination (with more than 500 employees) are obliged to set targets to increase the proportion of women. If the proportion of women is below 30%, the target must not fall below this proportion.
Supervisory board, advisory board, board of directorsThe formation of a supervisory body for the management in the form of a supervisory board, advisory board or administrative board is possible, but only mandatory under special conditions. The latter is the case with GmbHs with usually more than 500 permanent employees as well as with GmbHs in the coal and steel industry.
The full company name (exactly as entered in the commercial register), the legal form and the seat of the GmbH, the register court, the commercial register number as well as the first and last names of all managing directors and, if applicable, the first and last name of the chairman of the supervisory board. It is advisable to only have business letters created after the GmbH has been entered in the commercial register, because only then is the HR number known and there is certainty about the admissibility of the selected company. The managing directors can be ordered to comply with these regulations by the local court with a fine (maximum EUR 5,000).
Transfer of business parts
Parts of the GmbH business can be sold and inherited. A notarized assignment contract is required for the sale. The articles of association may stipulate certain restrictions on the sale of business shares. In practice, this often happens in family businesses. The list of shareholders can be viewed online thanks to the electronic register management. Anyone registered there is deemed to be a shareholder. A bona fide acquisition of shares in a GmbH is possible. For this it is necessary that the seller of the share has been wrongly entered in the list of shareholders for more than three years or that the inaccuracy can be attributed to the true owner, that no objection has been raised against the inaccuracy and that the purchaser is not aware of it.
Dissolution and liquidation
A GmbH can be dissolved by a shareholders' resolution with a qualified majority. Further reasons for termination include: expiry of the time specified in the partnership agreement, opening of insolvency proceedings or a legally binding decision rejecting the opening of insolvency proceedings due to lack of assets. In the subsequent liquidation, the liquidators must observe the so-called blocking year when distributing the assets. It should also be noted that a GmbH does not cease to exist when the resolution is passed on its dissolution, but only when it is deleted from the commercial register. In particular, a GmbH must meet its ongoing financial obligations by the day it is finally deleted from the commercial register.
The criminal offenses include Incorrect information to the court regarding the payments to the share capital, untrue presentation or concealment of the financial position of the GmbH and the culpably delayed filing of an insolvency application Managing directors who fail to report a loss of half of the share capital to the shareholders are also liable to prosecution. The unauthorized disclosure of trade or business secrets by managing directors, members of the supervisory board or liquidators is also punishable.
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