Die Kapitalerhaltung bei der GmbH Co KG

Stefan Frank
2009 unpublished
1. Basics Capital maintenance at companies with limited liability ("GmbH"): - "The capital maintenance rules have the purpose to protect creditors from possible negative developments of the company in the future and they provide compensation for the lack of personal liability of the shareholders of the company with limited liability." (Austrian Supreme Court) - According to Sec. 82 of the Companies with Limited Liability Act the shareholders may not claim back their initial contribution; as
more » ... as the company exists, they shall only be entitled to claim the balance sheet profits resulting from a surplus of the assets over the liabilities pursuant to the annual financial statements. Exempted are payments to shareholders based on transactions that are comparable to third party transactions (at market prices). Capital maintenance at limited partnerships ("KG"): - The liability of a limited partner is restricted with his guaranteed amount that is registered in the company register. If the limited partner has contributed the guarnateed amount to the company he/she is not liable vis-á-vis third parties any more. - If the limited partner receives back his guaranteed amount from the company his third party liability revives. 2. Legal Problem The basis for possible extended capital maintenance rules at the GmbH Co KG is that no natural person is liable with his/her whole private property. In other words there is no natural person with unlimited liability. The capital maintenance rules regarding the GmbH and the KG are very different and each set of rules is only designed for the respective type of corporation. At the GmbH Co KG there is the danger that shareholders may circumvent the stricter capital maintenance rules of the GmbH by withdrawing funds from the assets of the KG. Withdrawals of assets from the KG could have a negative effect on the capital of the GmbH because it is the unlimited partner of the GmbH Co KG and the less capital the KG has the greater is the risk that creditors claim their money back from the G [...]
doi:10.25365/thesis.6085 fatcat:ywzt2agenffvvat76o3hb4vxg4