Liquidation

Under Liquidation ( liquidāre of latin, liquefy ') is understood in the economic and jurisprudential context, the sale of all assets of a company or association with the aim ( " liquid" ) to convert the bound therein capital in cash or other readily convertible into cash funds. Goal of liquidation is the termination of the Company.

General

From the corporate perspective is the dissolution or winding up of the start of the period after the dissolution of the Company or of the association, by which they are led to the actual no assets to enable the full end of their existence by registerliche deletion. It is the second phase of the termination of a company or an association, preceded her has the legal form regardless the resolution, it follows the deletion from the register. The liquidation phase takes place only if a (not insolvent ) company should be properly closed or a bankruptcy petition was not rejected for lack of assets. In contrast, the liquidation in the context of insolvency proceedings follows the complex special standards of the insolvency law.

Purpose of liquidation

The processing is usually performed by the board members / directors, the partnership agreement or by a decision of the General Meeting, however, a different person may be designated as liquidator ( § 265 para 1 and 2 AktG, § § 146 et seq for partnerships). The persons entrusted with the liquidation of an association or a commercial company under German law (eg HGB, Limited Liability Companies Act, AktG or BGB) people are also called liquidator. The same term wear in Switzerland, among others, the persons entrusted with the implementation of a liquidation comparison people. The liquidators represent the company in and out of court ( § 269 para 1 AktG). Similar rules apply to the LLC ( Limited Liability Companies Act § 66, Section 1 ). Task of the liquidator is to generate the largest possible mass distribution in the interests of creditors and shareholders / partners. In an Open liquidation, the liquidators shall make known the liquidation of publicly announced plans to end the current business to collect the receivables to implement the remaining assets in money and to call by a creditor call them to come forward ( § 65 para 2 Limited Liability Companies Act ). As of this notice, the deadline for the barrier year ( § 73 para 1 Limited Liability Companies Act ) begins prior to its expiration and complete debt settlement may not be distributed to the shareholders, the remaining company assets; liable in case of violation, the liquidators with their private assets ( bankruptcy protection ). Before 1 September 2009, this notice had three more times to take place before the year blocking could begin.

At liquidation, the sale of the company in whole or in part in operational parts. It should all the relevant liquidation transactions carried out and, where appropriate, new contracts were signed. During the liquidation phase, the companies bear a the settlement process characterizing additional companies ( " iL " for " in liquidation" or " in liquidation", " i Dev. "; Eg § 71 para 5 Limited Liability Companies Act ). Purpose and content of liquidation is the conclusion of the pending transactions with the aim of distributing the remaining, existing solely in financial assets to the shareholders according to fulfillment of all liabilities ( Limited Liability Companies Act § 72 ). The remaining assets to be distributed less liquidation costs is referred to as liquidation proceeds.

Must be distinguished from the case of the silent liquidation, in which the owner of a company trying to shut down the company without public display of resolution intention. In these cases, the operation carries no I.L. to the company name.

Registration of the liquidator

The liquidator arises usually from the commercial register. When GbR no entry is made, but there is always an overall representation by all liquidators, even if previously single representation has passed.

End of the liquidation

After distribution of liquidation proceeds to the shareholders and the preparation of the final account, the liquidator must the termination of the winding login to the commercial register. With the application the court must show a copy of the notice of the resolution statement to creditors. The company is now complete and will be deleted from the commercial register ( § 273 German Stock Corporation Act, § 74 Paragraph 1 Limited Liability Companies Act ). The liquidation basically leads to the elimination of the right capacity and the capacity of its completion, that is a corporation no longer has active asset and is deleted from the commercial register. The operated in the course of an ongoing process of liquidation then establishes an omission of the party ability, if a company is fully completed, it was therefore deleted from the Commercial Register, no more of active assets exist and thus at the same time - in a passive process - the access object is omitted for the plaintiff. A partnership for tax purposes, however, be regarded as substantively further existent as long as trade tax claims are asserted against them yet; consequently, it is valid for the duration of the dispute over the trade tax decision as fiscally existent. For partnerships, no statutory regulation is provided because creditor protection provisions because of Vollhafterfunktion are not required. According to § 131 Section 3 Sentence 1 No. 1 of the German Commercial Code namely separates a general partner only with the full completion of the OHG or KG. OHG and KG go out with their full completion, the Deletion from the commercial register has only declaratory yet.

Deletion

The end of the liquidation, the company transferred to the stage of their deletion capability, which should be examined by the registry court carefully according to § 26 FamFG. In this case, the registration court of its own motion to determine whether the settlement process has been terminated, and consequently neither rest nor other asset liquidation measures are required. In particular, the courts have to take because of the necessary investigations and, in this context, the application example the tax office for an opinion forward, whether the liquidation is final balance has been submitted and the tax assessment is completed. If concerns or objections are expressed, the entry of the cancellation is deferred until full completion. If there are no objections, the registration court bears the extinction of one ( " The liquidation is completed. Society is deleted "). With deletion from the register the termination occurs ( § 74 Limited Liability Companies Act ).

The Deletion from the commercial register as long as does not affect the capacity to process and ability to act as the legal status of a partnership are not yet settled with third parties. The demise of the party capability and process capability of a partnership presupposes their full completion. The deletion has only declaratory effect, so that the absence of active assets is decisive for the full completion. Is the partnership agreement of a general partnership determined that after the withdrawal of a partner, the company will continue under the remaining partners, and separates the penultimate shareholders from the GbR, so this leads to liquidation without full completion of the Company.

With the deletion from the commercial register, the company ceases to exist. Only in exceptional cases three stages of dissolution - liquidation full completion can coincide, particularly in removal of the company because of any assets by the registry court pursuant to § 394 para 1 FamFG. A deletion because no assets of its own motion is provided substantive law in this provision for all corporations ( AG, GmbH and KGaA). The deletion leads to a loss as a legal entity. The impecuniosity is to consider carefully because of the serious consequences of a cancellation by the court.

If it subsequently that yet undiscovered assets is yet available, an addendum liquidation shall be carried out.

Liability of the liquidator

The liquidator has to meet tax obligations. He hurt her, so that leads to the tax liability, see Leibner / Pump, The tax obligations of a Liquidator of a limited company, GmbHR 2003 996