關於設立GmBH的新規定 英文版

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Dear Reader,
We would like to inform you with this letter about the changes in corporate law
concerning companies with limited liability (GmbH) in Germany by the “Act to Modernize
the Law Governing Limited Liability Companies and to Combat Abuses” (MoMiG). The
law has taken effect on 1 November 2008.
Through the MoMiG, the law governing companies with limited liability (GmbH) will be
fundamentally changed. The first part of this letter gives an overview of the essential
changes. The second part of the letter will point out the practical implications of these
changes. Changes caused by the MoMiG in laws other than the law governing
companies with limited liability (GmbHG) e.g. the German Stock Corporation Act,
Insolvency Statute, and Reorganization Act, are not covered in this letter. Should you
have any questions on these matters, we stand ready to assist you.

I. OVERVIEW OF THE CHANGES IN THE GMBHG (LAW CONCERNING COMPANIES WITH
LIMITED LIABILITY)
1. Establishment of a GmbH
For the establishment of a company by cash subscription, a simplified founding process
will be possible in the future, if the new GmbH has no more than three shareholders and
only one managing director. In this case, a model protocol (Musterprotokoll) is to be
used for the establishment (Appendix to the law governing companies with limited
liability). This model protocol combines the articles of association, the appointment ofഊ- 2 -
the managing director and the list of shareholders. The contents of the model protocol
are mandatory; moreover, it is not permitted to deviate from the dispositive rules of the
law governing companies with limited liability.
Since the model protocol does not contain any regulations on the restriction of a
company share transfer, on the withdrawal of company shares or any minority rights,
the use of the model protocol will not generally be recommended for the establishment
of a GmbH by more than one person, or for a company with multiple members.
Another new feature is that the evidenced proof of an eventually required government
permit is no longer a prerequisite for the entry of the company in the commercial
register. This should serve to facilitate the registration procedure.
2. Raising of Capital
The changes in this respect are shown in the following chart.
Subject Previous regul ation New regulation
Share capital
• Share capital of at least
EUR 25,000.00;
• Company share of each
shareholder must be at
least EUR 100.00 and
divisible by 50;
• Each shareholder can
take over only one
company share;
• Share capital of at least
EUR 25,000.00, however:
founding of a so-called
‘entrepreneurial
company (with limited
liability)’ with a minimum
share capital of EUR 1 is
possible;
•
Company share of each
shareholder at least EUR
1.00, no more
requirements with
regard to divisibility;
• Each shareholder can take
over more than oneഊ- 3 -
• One-person GmbH:
Necessity of a security
for the not-paid-in part of
the share capital
company share;
• One-person GmbH: It is
no longer necessary to
provide a security.
Authorised capital
Authorised capital is not
possible with a GmbH
Creation of authorised capital
when establishing a GmbH or
later in the course of changing
the articles of association is
possible
Further significant changes are contained in the MoMiG with regard to the so-called
hidden capital contribution in kind as well as the creation of a case of back-and-
forth payment of capital, which is important in practice (Example: The shareholder
establishes a GmbH and reimburses the share capital as a loan to himself or to a
person close to the shareholder once the GmbH is registered.).
In both of the aforementioned cases, the legal situation is simplified and clarified by the
MoMiG. The solution to these kind of problems continually cropping up in practice is
made much easier by the new regulation. For reasons of space we shall refrain from
providing more details at this juncture.
3. Maintenance of Capital
Basically it still holds that the assets of the company necessary for the maintenance of
the share capital may not be paid out to the shareholders.
This prohibition does not apply, however, regarding
- Payments made by the GmbH to its shareholders when there exists a domination
agreement or profit transfer agreement (in the sense of Sec. 291 Stock
Corporation Act).ഊ- 4 -
- Disbursements by the GmbH to its shareholders which are covered by the full
right to consideration or to repayment from the respective shareholder (from an
accounting perspective),
- Reimbursement of a shareholder loan or to payments of debts arising from legal
transactions that are commensurate with a shareholder loan in the business
sense.
Through this new regulation, the legal concept of the so-called capital replacement loan
is nullified.
In the future all shareholder loans will be treated equally, that is, regardless of whether
they were deemed as capital-replacing, according to the previous regulations, or not. It
is no longer a matter of whether the former criteria, namely “crisis”, “capital-replacing” or
“abandoning a loan in the crisis” apply. In the future, all shareholder loans will be
subordinated in the insolvency of the company. Thus they basically represent risk
capital.
Payments on shareholder loans are, therefore, possible regardless of whether the
company is currently in a crisis or not, except during insolvency proceedings. In the
future it will be possible to repay shareholder loans even during an economic crisis. If
the GmbH does, however, become insolvent, payments on shareholder loans that are
made within one year before the filing for insolvency proceedings can be contested.
The new regulation outlined above is significant for so-called cash pooling systems.
Through the return to the balance sheet approach, the participation in a cash pooling
system (granting of a loan by the sub-company to the parent company of the group) is
now again possible without the previously existing legal risks. It is disadvantageous for
the parent company of the group, however, that in the future, all claims stemming from
shareholder loans (even if they were granted within the framework of a cash pool) will
be subordinated in the case of insolvency.ഊ- 5 -
4. Transfer of Shares in a GmbH
Also with regard to the transfer of company shares there are basic changes, an
overview of which is shown in the following table:
Subject Previous regul ation New regulation
Share transfer
• The disposal of parts of a
company share requires the
approval of the company;
prohibition of share splitting
before actual need
(Vorrats-teilung)
(Sec.
17 GmbHG);
• Acquisition of company
shares in good faith is not
possible
• Approval by the company
is no longer necessary;
Sec. 17 GmbHG is
abolished without
replacement;
• Acquisition of company
shares in good faith is
possible; essential basis
for an acquisition in good
faith is the shareholder list
Shareholder position
Regarding the disposition of
shares, only those shareholders
who have notified the company of
their acquisition by providing
proof of transfer are deemed
shareholders by the company.
When a change in
shareholding takes place, only
those shareholders who are
registered in the shareholder
list located at the commercial
register are deemed true
owners of company shares.

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The above explanations show that in the future the shareholder list is definitive, and its
accuracy will be of special significance (in particular for the acquisition of company
shares in good faith). The managing director should therefore in the future constantlyഊ- 6 -
check whether the shareholder list is complete and correct. The shareholders, for their
part, should inform the managing director of any change in the list of shareholders.
5. Seat of the Company – Appointment of the Managing Director
Up to now, according to German law, the registered office (“seat”) in the articles of
association of the GmbH and the location of the administrative headquarter (= actual
domicile of the headquarter) have to be in Germany. Through the MoMiG this
requirement is changed. A German GmbH must in the future establish in its articles of
association a domicile in Germany; the administration can, however, actually also be
located at another place, even in a foreign country.
The obstacles hindering an appointment as a managing director of a GmbH are
considerably expanded by the MoMiG. In particular, the list of offences that lead to
exclusion has been expanded; now it includes criminal convictions in foreign countries
which are comparable to offences penalized in Germany. Also persons who were
convicted of fraud or fraudulent breach of trust with the consequence of imprisonment of
not less than one year can no longer be appointed as managing directors. In such
cases, there is a prohibition of an appointment as managing director of a GmbH for a
period of five years beginning upon the final judgement. The new obstacles do not
apply, however, to managing directors who were appointed before the MoMiG has
taken effect, provided that the date of the final judgement preceded that date.
6. Prevention of abuse
In cases where a GmbH is without management, i.e. if a GmbH has no managing
director, it will, in the future, be the responsibility of each shareholder to file for
insolvency in the case of illiquidity or overindebtedness of the GmbH, provided that the
shareholder is aware of the insolvent situation of the GmbH or of the lack of a managing
director.
According to the former legal position, the managing directors of a GmbH had to
provide reimbursement for payments made after reaching the state of insolvency. In the
future, this liability will also extend to payments to shareholders which have led toഊ- 7 -
illiquidity of the company, unless this was not discernible by the managing directors
even when observing the relevant rules of due care and diligence. Thus, there is a
heightened risk of personal liability of the managing directors in the phase prior
to insolvency.
From now on, it is possible to serve documents by way of public notification to the
business address registered in the commercial register.
II. PRACTICAL IMPLICATIONS OF THE MOMIG
1. The practical implications of the new regulations brought about through the
MoMiG will be primarily in the following areas:
- the establishment procedure of GmbHs;
- the drafting of articles of association;
- the transfer of shares;
- the repayment of shareholder loans or participation in a cash pooling
system;
- the liability of managing directors.
2. The following list of questions (which is not exhaustive) should aid in determining
whether there is a definite need for action on your part.
a) Do you intend to establish a GmbH?
If so, it must be decided how to proceed, e.g. which of the available legal
options (“regular” GmbH; through the use of a model protocol;
entrepreneurial company (with limited liability) etc. ) is actually to be used.ഊ- 8 -
b) Would you like to carry out business in a foreign country and, for that
purpose, use a German GmbH rather than a company subject to foreign
law?
c) Is a new managing director to be appointed?
In this case, the considerably expanded reasons for exclusion are to be
taken into account.
d) Is the shareholder list correct?
If not, any corrections should be checked, as the shareholder list is
significant for the position as shareholder and for future share transfers.
e) Do the managing directors and shareholders know their expanded/new
duties, especially in the case of lack of management, or of insolvency of the
GmbH, or with regard to the shareholder list?
f) Is there a problem in the company with a hidden contribution in kind, for
which up to now there has not been a final judgement, or a binding
agreement made between the company and the shareholder?
If so, the new regulation in Sec. 19 subs. 4 GmbHG can apply.
g) Is a repayment of shareholder loans planned, or the granting of loans
within the framework of a so-called cash pooling system? Should, or must,
existing cash pooling systems be changed?
h) Do you wish to create authorised capital for the first time?ഊ- 9 -
i) Do the current articles of association of the GmbH contain regulations
with respect to the nominal value of company shares / the splitting of
company shares?
If so, would an adjustment of the articles of association to the new statutory
rules be considered?
Should you need support with regard to one of the aforementioned aspects, we
would be happy to assist you. If desired, we will also be glad to send you a more
detailed representation in the form of a chart(overview contrasting the old
regulations with the new ones).