In the event of insolvency and over-indebtedness, the managing director of a GmbH must request the opening of insolvency proceedings (formerly: bankruptcy). However, this has a significant impact on the image of the GmbH in the competition to the competition. At the same time, the managing director threatens private liability in the event of a delayed insolvency application. The GmbH Managing Director is therefore in a dilemma and urgently needs good advice from tax consultants or lawyers, whether he now has the obligation to file for insolvency or this can still be postponed. In our article we show what an insolvency consultant has to pay particular attention in this regard when advising a GmbH managing director. This is intended to secure the managing director in order to avoid private liability for his actions during insolvency.

1st introduction

In the context of advising GmbH managing directors in the event of an already existing or imminent crisis, a consultant should, in addition to the effort to rescue the company, also focus on the compensation of the managing director in criminal and liability matters. After all, this consulting service is about an all-encompassing approach.

The challenge here is to review both the past and the current company situation, in particular with regard to an insolvency filing obligation. At the same time, it is important to provide the managing director with “rules of conduct” for his or her proper action in the context of the crisis.

In this context, the provision of § 64 GmbHG plays a central (intellectual) significance. In practice, it is recognized that the standard is one of the most effective and common tools for insolvency administrators to use management at the private level.

“The directors are obliged to compensate the company for payments made after the company has become insolvent or after its over-indebtedness has been established.”

This does not apply to payments that are compatible with the care of a regular businessman even after this time.

The same obligation applies to the managing directors for payments to shareholders, insofar as these had to lead to the insolvency of the company, unless this was also not recognizable by observance of the care specified in sentence 2.

The provisions in § 43 para. 3 and 4 corresponding application.

2.1 Basic idea of the liability of § 64 GmbHG

§ 64 GmbHG intends to preserve the insolvency estate and protect the insolvency creditors. For this purpose, the assets of the company available to the creditors, i.e. the insolvency estate, should be maintained from the time of maturity. This is achieved by the GmbH Managing Director, in the context of the insolvency situation, should in principle no longer be allowed to make payments from the company assets.

Of course, the consultant should keep this objective in mind again and again in the context of the justification of payments.

2.2. Payments within the meaning of § 64 sentence 1 GmbHG

The liability sharpness of § 64 GmbHG for GmbH Managing Directors becomes clear against the background that the feature “payment” is to be understood very broadly.

According to the case law of the Federal Court of Justice, this includes all benefits from the company assets that reduce the insolvency estate. [] 1]

As a result, business transactions are considered which GmbH managing directors usually do on a daily basis, such as: