Duties of the management of GmbHs

If you are the managing director of a GmbH, you must manage the company's affairs with the diligence of a prudent businessman or woman. Your duties include, for example, actively promoting the purpose of the company on the basis of the shareholders' instructions and preventing damage to the GmbH. If you act contrary to your duties you are obliged to pay damages .

Accordingly, you are liable personally . The prerequisite for this is a breach of duty a damage (any impairment of the company's assets) and any contributory cause by you as a managing director. You are also obliged to prove that you are not responsible for the damage

Your duties as a managing director, which lead to liability risks can be broken down as follows:

Duties in the start-up phase:

• Business registration,
• Correct information on the business documents,
• Registering employees with health insurance companies,
• Set up bookkeeping,
• Liability for untruthful information in the HR entry.

Liability risks when operating a GmbH:

• Form and deadline requirements when convening the shareholders' meeting,
• Liability for prohibited competitive activity (non-competition clause),

• Liability due to the conclusion of a contract that has not brought any measurable benefit to the company but has resulted in considerable costs,
• Conclusion of excessively risky credit transactions,
• allowing claims to lapse and waiving realizable claims,
• Conducting transactions that contradict the purpose of the company,
• Liability for unlawful repayment of capital contributions.

Liability risks in a crisis:

• Liability due to late filing for insolvency,
• Liability because the shareholders' meeting was not informed of a 50% loss of the share capital,
• Liability for payment after the company becomes insolvent or over-indebted,
• Liability for the entrepreneurial company (haftungsbeschränkt) if the shareholders' meeting is not convened in the event of imminent insolvency,
• Liability if payments were made to the company that were bound to lead to insolvency.

Liability of the management towards the GmbH

If you violate one or more of the following statutory obligations, you may be held liable by the GmbH in the internal relationship and may even be held criminally liable. criminal liability be held liable.

In order to avoid liability and thus an obligation to pay compensation, it is important that you fulfill the obligations obligations and the liability facts based on them .

Civil liability

• Duty to conduct all affairs of the company with care of a prudent businessman or businesswoman and the resulting liability,
• Duty to convene a shareholders' meeting in the event of a loss of half of the share capital,
• Liability for false statements in the formation of the company,
• Obligation to registration of the list of shareholders with the commercial register and corresponding liability,
• Obligation to maintain the capital contributions and liability for unlawful repayment of capital contributions,
• Duty to proper bookkeeping ,
• Obligation to submit and the management report and obligation to publication of the annual financial statements with the operator of the electronic Federal Gazette
• Obligation to act within the power of representation in the event of restrictions on the power of representation of the managing directors by the articles of association or by resolution of the company,
• Duty to to file for insolvency . If the company becomes over-indebted or insolvent, you as the managing director and the managing directors or the representative bodies of other companies, insofar as they are responsible for management, or the shareholders themselves in the event of a lack of management, must file an application for the opening of insolvency proceedings. The application must be filed within 3 weeks. Due to the provisions of the Insolvency Code, this obligation applies not only to German company forms, but also to foreign ones, for example.
• Liability for payment after the occurrence of insolvency or determination of overindebtedness . If the management acts contrary to the obligation to file for insolvency, it is liable to the company for damages for payments made after this time. The same applies if payments are made to shareholders insofar as these have contributed to the company's insolvency.
• Prospectus liability for the accuracy of the information provided in the prospectus for investment companies,
• Liability for breach of a contractual non-competition clause .

Criminal liability

In addition to civil liability, you may also be held criminally liable for breaches of duty.

The following criminal offenses may be relevant:

• Criminal liability for failure to provide information about the loss of half of the share capital,
• Criminal liability for failure to file an application for the opening of insolvency proceedings,
• Criminal liability for delay in filing for insolvency, bankruptcy and other breaches of duty in the event of insolvency,
• Criminal liability for fraud or embezzlement ,
• Criminal liability for withholding and embezzlement of social security contributions ,
• Criminal liability for breach of the duty of confidentiality for example, unauthorized disclosure of trade or business secrets.

Liability of the management towards third parties

You can also be liable for damages to third parties in the external relationship.

The following facts may be relevant here:

• Liability due to misrepresentation for example, if you do not make it clear that you are acting on behalf of a GmbH,
• Liability as Representation without power of representation for example, if you do not adhere to a limitation of power of representation entered in the commercial register,
• Liability arising from fault in negotiations . This is the case if you enjoy particular trust among your business partners and the contract negotiations are therefore strongly influenced and shaped by your person. If a kind of personal guarantee is claimed for the declarations made and if this was of decisive importance for the decision to enter into the contract, liability for negotiating negligence may be considered.

Economic self-interest

One speaks of economic self-interest if you as a managing director have a strong economic interest in the conclusion of the contract and are seeking personal gain from the business with the GmbH or have placed particular personal trust in it. This is particularly relevant for credit transactions .

• Liability arising from tortious acts such as fraud, subsidy fraud, embezzlement,
• Tax liability for intent and gross negligence,
• Liability for entering into transactions despite the company's insolvency due to intentional immoral damage ,
• Liability towards creditors in the event of delay in filing for insolvency for damages.

Liability for damages due to compliance with shareholder instructions

Your liability can be excluded if you have acted on the basis of effective instructions from the shareholders' meeting have acted. As you are legally bound by the instructions of the shareholders' meeting, no claim for damages can arise from compliance with a legal obligation. However, you remain liable if the instruction was not effective. This may be the case, for example, if the resolution passed by the shareholders' meeting was incorrect. However, the contributory negligence of the company must be duly taken into account.

Liability due to the allocation of responsibilities among several managing directors

If several persons have been appointed to the management of a GmbH, each of them has an unlimited duty to manage the company. If several managing directors are responsible for a loss, they are liable to the company as joint and several debtors. joint and several debtors . This means that the company can make a claim against each of them in full. The managing directors may then have to compensate each other.

Even if a provision in the articles of association of the company or a corresponding resolution of the shareholders, which divides the responsibilities within the management among the managing directors, does not mean that the managing directors are only liable to a limited extent for the area of responsibility assigned to them. Such a regulation of responsibilities within the management is called allocation of responsibilities . The diligence of a prudent businessman or woman also includes ensuring that the actions of another department do not cause lasting damage to the company. This includes mutual, cross-departmental monitoring of the management among themselves. The managing directors therefore also have an overall duty to ensure a functioning information system. Therefore, the reference that one could not have found out about the actions of another division cannot lead to exclusion from liability.

• Electronic Federal Gazette