The GmbH
A limited company (GmbH) is a legal entity of private law, in whom other legal or natural persons with a cash investment take part. The GmbH belongs to the group of the finance companies.
As a legal entity the GmbH is independent Trägerin of rights and obligations: she can be locked property be acquired, contracts and complained and sued before court. Thereby the managing directors take over the legal agency. As in the designation to be recognized, the GmbH clings only with its corporate assets, not however with the private possession of the partners.
Except GmbH are further usual abbreviations of the company form among other things GesmbH (in Austria), ltd. (in connection with the publicized word society like e.g. in XYZ development company ltd.) or gGmbH (non-profit limited company).
The GmbH is considered as a commercial company in the sense of the commercial code. The special legal bases of a GmbH are in the law concerning the limited companies (GmbHG) from 20 April 1892, last changed by the law from 10 November 2006 (article 10).
For establishment at least one person (one-man GmbH) is necessary. In addition, as many as desired further persons can participate in the establishment act. They set up a statute, which must contain the following:
- Company, seat and purpose of the GmbH
- Height of the capital stock and distribution on the partners
- Nebenabsprachen
Differently than at unincorporated firms a notarial recording is prescribed at the GmbH. During the establishment of a GmbH a trade register entry must take place, from which the GmbH results legally.
A GmbH must be registered for its emergence into the trade register (konstitutiv). In addition are the articles of association notarially to record („establishment of the GmbH “). Subsequently, a normal registration must be delivered opposite the registry office. In articles of association natural persons and legal entities can take part. It is not necessary that one possesses natural person taken part the German nationality at the establishment of GmbH. The articles of association specify the obligations to cooperate of the founders for the establishment of the GmbH and the statute of the future GmbH. Starting from this time it acts around one „limited company in establishment “(briefly: , GmbH ith G.´´). The additive ith G. points out that the society is still in the establishment phase as preGmbH. In this phase the society is already part legally responsible, can acquire thus for example property at a property.
The statute of the GmbH must contain:
- the company of the GmbH
The company of the GmbH must contain the designation „of limited company “or a generally understandable abbreviation of this designation, e.g. „GmbH “. - the seat of the GmbH
Seat of the society is the place, which the articles of association determine. The seat must lie in Germany. Besides the GmbH can however also maintain (German and foreign) branches. - the the subject of the enterprise
A GmbH can be established for each legally permissible purpose. - the height of the capital stock
The minimum capital stock amounts to 25,000 euro, the investment of each partner must at least 100 euro amount to, see § 5 exp. 1 GmbHG - the amount of the investments
The investment is the portion of the capital stock, taken over by a partner. The investment of each partner must amount to at least 100 euro. With the establishment of a GmbH no partner can take over several investments [§ 5 II GmbHG], probably however can the investments taken over by the individual partners be differently high. Legally prescribed it is only that the investments must be divisible by 50 in euro [§ 5 III GmbHG].
The statute of an a person
GmbH (establishment
by only one partner) with prescribed and usual minimum contents can read
for example as follows:
- § 1 company, seat
- 1. The company of the society reads: __________ GmbH
- 2. Seat of the society is _______________.
- § 2 the subject of the enterprise
- 1. The subject of the enterprise is the selling of ___________________.
- 2. The society may operate all business, which is connected with this enterprise article. The society is justified to take part in other enterprises to take over whose management and establish branches at home and abroad.
- § 3 duration, financial year
- 1. The society lasts on indefinite time.
- 2. The financial year of the society is equal to the calendar year.
- 3. The first financial year (trunk year) begins with the establishment of the society and ends on 31 December of the year of the foundation.
- § 4 capital stock, investments
- 1. The capital stock of the society amounts to 25,000, 00 EUR.
- 2. On this capital stock gentleman/Mrs. transfers _______ _______ an investment in same height. The investment is to be carried out in money and in full height immediately for payment due.
- § 5 management and agency
- 1. The society has one or more managing directors, who will recall from the company meeting ordered and.
- 2. Each managing director represents the society individually.
- 3. Each managing director is authorized, in the name of the society with itself in the own name or as representatives third legal transactions to make (release from § 181 BGB).
- § 6 establishment expenditure
- The society takes over the foundation charges up to the amount of 1.000, 00 EUR.
- End -
The GmbH is with the registry office (district court), in whose district it has its seat to announce for entry into the trade register (department of B). The registration may be made only if at least one quarter of the investment and at least one amount are deposited at height of half of the minimum capital stock. If only one partner is present, a safety device is to order for the remaining part of the capital paid in (§ 7 exp. 2 GmbHG). After registration the examination finally takes place via the registry office and the konstitutive entry.
For demands, which developed before recording the articles of association, the founders must personally as a total debtor once marriages. If the established becomes, but in the trade register yet preGmbH did not announce in business actively, the preGmbH clings with its capital stock, as far as this is already formed and it concerned necessary establishment business or a partner was authorized to other business. As reconciliation for the own capital funds formation not locked yet are according to dominant opinion in addition the founders, as far as the commitments of the preGmbH cannot be corrected from the capital stock already deposited, their business share in accordance with proportionately the society, transferred in the articles of association, opposite afflicted. The creditors can let the demands of the preGmbH seize against their founders and draw in or payment instead of to the nominal value be transferred on let themselves. Another opinion wants to let the founders cling directly opposite the creditors in the height, in that their obligation to carry out on their investment nor exists. If actual assets of the society are under the capital number (adverse balance) at the time of the entry into the trade register, the partners remain materially responsible at height of the adverse balance of the GmbH. In order to induce the managing directors to as rapid a registration as possible, persons, who act as representatives or like representatives of the society before the entry into the trade register right in business, must unrestrictedly, directly and solidary with their private possession for the debts of the GmbH once marriages (§ 11 exp. 2 GmbHG). It may participate however only one person.
The GmbH must have one or more managing directors (§ 6 exp. 1 GmbHG). The right of representation of the managing directors is out-arranged thereby organschaftlich. Managing directors know only natural, unrestrictedly competent persons its (§ 6 exp. 2 sentence 1 GmbHG). The managing directors lead the business of the GmbH after the instructions of the company meeting and in the context of law and statute (§ 37 exp. 1 GmbHG). The managing directors represent the GmbH judicially and opposite out of court third (§ 35 exp. 1 GmbHG). The right of representation of the managing directors is third opposite unrestrictedly and illimitably (§ 37 exp. 2 sentence 1 GmbHG). The managing directors have the care of a tidy businessman in affairs of the GmbH to use (§ 43 exp. 1 GmbHG). Insichgeschäfte are permissible only if they are expressly permitted in the articles of association or by partner resolution (§ 181 BGB).
Apart from the agency exclusively by managing directors also the possibility of the so-called mixed joint representation exists. With this the agency of the society takes place jointly either via the managing directors or via a managing director in community with an attorney as a right-business representative (analogy too § 78 Abs 3 AktG). Beyond that also the possibility of the distribution of a general action authority in accordance with § 54 HGB, i.e. the order of a right-business representative of the society exists, without distribution of a power of attorney. Both the mixed joint representation as well as the distribution of a general action authority are however permissible only if the organschaftlichen rights and obligations (e.g. §§ 41, 43 Abs 3, 64 GmbHG) are not impaired the managing director thereby. For the joint representation this means that it may not be refused to the managing director also without co-operation of an attorney to act. For the distribution of the general action authority this means that the powers of the general proxy may cover not also organschaftliche rights and obligations, but these with the managing director to remain must; one the managing director position equaling position of the representative is thus inadmissible.
In the statute of the GmbH a supervisory board can be planned. A supervisory board must be formed, if the GmbH employs more than 500 employees. In this case the relationship employee (ON) reads to employer (AG) in the supervisory board 1:2. If a GmbH employs more than ON 2000, the relationship is with 1:1, whereby it must consist of at least 12 natural persons. The chairman of the supervisory board has a secondary voice with deadlocks. The task of the supervisory board predominantly exists in the monitoring of the management.
Highest terminal organ of the GmbH is the whole of the partners in form of the company meeting. Their competence extends - so far law or statute something else does not determine - to all affairs of the GmbH (§ 45 GmbHG). The partners seize their resolutions in the company meeting (§ 48 exp. 1 GmbHG). With agreement of all partners written tuning without holding a meeting is permissible (§ 48 exp. 2 GmbHG).
The GmbH has to correct all commitments from their corporate assets unrestrictedly. The private possession of the partners is not however into this adhesion stick in principle with merged (separation principle). For obligations, which developed still before entry of the GmbH into the trade register, the GmbH has however requirements for reaching through on the partners, as far as these obligations let actual assets fall for the deadline of the entry under the capital number. Creditors can seize let these requirements of the GmbH against the partners, directed toward the reconciliation of the adverse balance, and draw in or to the nominal value be transferred let themselves. The adverse balance adhesion serves the protection from an already initial consumption of the capital stock. The preloading prohibition represented in former times was given up because of its economically lähmenden effect.
To the GmbH in principle the regulations of the commercial code apply over record keeping (§§ 238 to 263 HGB) as well as supplementing §§ the 264 to 335 HGB for finance companies.
Each partner transferred the obligation in the articles of association for the achievement of a portion of the capital stock (§ 3 exp. 1 No. 4 GmbHG). The third-party liability of a partner consists of fulfilling its investment obligation (§ 19 exp. 1 GmbHG). The partner can have his business share freely. The portion can be sold - an appropriate notarially recorded contract (§ 15 exp. 3 GmbHG) presupposed - and in all other respects also left or given away. The partners have requirement on the yearly surplus, as far as she does not permissible-prove is excluded from the participation (§ 29 exp. 1 GmbHG). Each partner can require of the managing directors the fact that they give him information immediately over the affairs of the GmbH and it permits insight into the books (§ 51a exp. 1 GmbHG). A partner can be excluded by judicial judgement from the society, if an important reason lying in its person makes the continuation of the society with him unreasonable.
A GmbH is as finance company and a legal entity its own tax subject. It is subject to that with its income body-expensively. The current control item amounts to 25% plus 5,5% solidarity tax on body-expensively.
If the GmbH pours profit to its partners out (dividend), it must retain of it capital return-expensively (control item at present 20%) and to the tax office to exhaust. The further tax treatment of the dividend and the retained capital return-expensively with the partner depends on whether the partner is a natural or legal entity with domicile and/or seat abroad in or.
A GmbH is considered as a commercial company in the sense of the HGB (§ 13 exp. 3 GmbHG). It is thus industrial concern strength legal form and is subject independently of their enterprise purpose of the trade tax.
A GmbH can be Unternehmerin in the sense of the value added tax right. The evaluation takes place after the same principles as with natural persons (§ 2 UStG).
If the GmbH employs employees, it has to fulfill the wage-fiscal obligations of an employer. That applies also in relation to (partner) the managing directors, whose purchases are assigned to the income from not-independent work (employee). The managing director salaries are deductible as operating expenditure.
A GmbH is dissolved among other things:
- by expiration of the time determined in the articles of association
- by resolution of the partners (more than 3/4 of the company meeting)
- by judicial judgement
- by opening of the insolvency procedure
- with validity in law of the resolution, by which the opening of an insolvency procedure was rejected for lack of mass.
A listing of the dissolution reasons is in the GmbHG (§ 60). The dissolution of the society must be announced for entry in the trade register. The managing directors are „the born “liquidators, if nothing else is certain. In the opened insolvency procedure the liquidation of the GmbH does not take place via the managing directors. If the insolvency procedure is rejected for lack of mass, then the managing directors are the liquidators, if nothing else is certain.
GmbHs were made possible for the first time by on 20 April 1892 the issued GmbH law. After the creation of this company form in Germany the concept in the whole world spread. First in Austria 1906, then in Portugal 1917, Brazil 1919, Slowakei 1920, Chile 1923, France 1925, Belgium 1935 and further countries comparable legals form were created.
The Federal Department of Justice has to 29. May 2006 the ministerial draft bill of the law for the modernization of the GmbH right and transmitted for the fight against abuses (MoMiG) the federal departments to the statement. The law is to make the legal form of the GmbH more attractive for the German middle class and strengthen so the economic situation Germany. At the same time in relation to the English Limited company a stronger position is to be provided for the GmbH in the competition of the company forms in particular.
In order to facilitate establishments of enterprise, the minimum capital of a GmbH is to be lowered in the future of 25.000 to 10.000 €. The registration procedures are to be accelerated, by being uncoupled by the procedure around administrative permission. The draft continues to suggest to introduce a kind acquisition in good faith of the business shares. Abuses of the GmbH in the crisis through „Firmenbestatter so mentioned are to be prevented “, which seeks to extract fastened GmbHs by recall of managing directors and by task of the business premises from a normal insolvency.
This draft sees itself however controversies to a discussion suspended. In particular an attenuation of the GmbH is feared, why is alternatively suggested introducing a further form of a finance company beside the GmbH.
An entry into force is expected between center and end of 2007.
- England: Limited company
- France: S.A.R.L. (France) (Société à Responsabilité Limitée)
- Greece: . . . ( )
- Italy: Società A responsabilità limitata
- Liechtenstein:
Capital stock are here 30,000 SFr or the appropriate equivalent in another currency or a Sacheinlage. Maximally 30 partners are permissible without grant. Organs of the GmbH are the company meeting as the highest organ, which must meet annually at least once; that or the managing directors as well as the board of control (revision place), which the end-of-year procedure examined and which is company meeting opposite report requiring. Legal bases of Liechtenstein person and corporate law (PGR) from 20 January 1926, LGBl 1926 No. 4
- The Netherlands: Besloten vennootschap
- Austria: GmbH/GesmbH
- Poland: Spó ka z Ograniczon Odpowiedzialno ci /frames Z.o.o or Spó ka Z.o.o
- Switzerland: S.A.R.L. /GmbH
- Spain: Sociedad de responsabilidad limitada: S.L
- Romania: Societate cu raspundere limitata (SRL)
- Croatia: trgova ko društvo (d.d., d.o.o., j.t.d i sl.)