Sunday, May 16, 2010

How Would A Scorpio Man Take A Prank

OLG Munich, May cause "old cases" of the recent capital replacement law

The OLG München (Judgement of 05.05.2010 - 7 U 4134/09) has ruled on the question of the scope of existing regulations on the capital-replacing loans. It was to include the repayment of borrowings from late 2006 until early 2009, which were now made of action. The defendant turned against that, inter alia, that the repayment would be due to the nature of the loan capital-replacing the existing § § 30, 31, 32a GmbHG contrary.

The Court of Appeals has decided the result true that in the present case, instead, a new law, including § 30 para 1 set of 3 GmbHG nF is applicable: "Henceforth there is the following duality:" old cases "are those in which was initiated prior to 1.11.2008, the insolvency proceedings on the company intended to qualify the old law (Article 103 d EGInsO). including the so-called "case law rules." The new law applies when the insolvency proceedings were opened against the assets of the Company after the closing date 1.11.2008. [...] In the present case on the Company's insolvency proceedings have not yet been opened, so that here only the new law is applicable. "

Here, the Court refers to the date on the question Fortegltung the current law handed down without obligation (abgedr. in NJW 2009, 1277). However, the statement made by the Court of Appeals rule that new law applies whenever the insolvency proceedings are opened after 01.11.2008 are not convincing. For one of the most important issues - which has not been decided by the Supreme Court - the question is what role the time of making the relevant right of action play here. In particular, it is unclear whether only new law should apply even if, although the insolvency proceedings were opened after 11.01.2008, the loan was repaid, but before that date. In such cases, I think better to speak Reasons to continue applying the existing law rules. If not already created would later claim reimbursement account again even though § 30 para 1 sentence 3 GmbHG nF such a reaction not just belongs.
would present case, the - coveted - Redemption at the 11.01.2008 is why the OLG is in the result but to agree. It remains to be seen how the problem will be solved just described, the superior court.


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