The AG Hamburg (67c IN 478/08) has the new requirement for bankruptcy of the shareholders pursuant to § 15 paragraph 1, sentence 2 Insolvency Act in conjunction with § 15a Paragraph 3 of Insolvency Act in its decision of 27.11.2008, as follows:
"of leadership" within the meaning of § 15 paragraph 1 p.2 new version only exist if the organschaftliche the Company's fact and law no longer exists. An "unknown residence" is not enough.
Thus, the Court has previously expressed the opinion of Römermann, NZI 2008, 641, 654, connected . It continues from: After the receiver objective horizon this provision as meaning that the representative organschaftliche law or in fact may no longer exist.
The opposite view in the literature, however, wanted to affirm the lack of leadership, even if the representative body is unwilling or unavailable to act (like this: Gehrlein , BB 2008, 846, 848). The court rejected such a broad interpretation of the new bankruptcy obligation to protect the shareholders but strictly.
Römermann had been rightly been pointed out that the wording of § 15 paragraph 1, sentence 2 InsO with this understanding of the standard is unztreffend, because the requirement to submit meet to does not "also" the interests beside the dead director, but only these.
The protection of shareholders lodged by the court here in the foreground appears, indeed necessary, as it is not sufficiently clear as to when (and for whom exactly) an unavailability of the manager is likely then. Considering, however, that should be made more difficult with the new rules, the so-called corporate funeral, and that these commercial companies Services often use the appointment of not more later-find managers, the dismissal of members appears from its duty as long as actually a manager there is not any doubt sublime.
"of leadership" within the meaning of § 15 paragraph 1 p.2 new version only exist if the organschaftliche the Company's fact and law no longer exists. An "unknown residence" is not enough.
Thus, the Court has previously expressed the opinion of Römermann, NZI 2008, 641, 654, connected . It continues from: After the receiver objective horizon this provision as meaning that the representative organschaftliche law or in fact may no longer exist.
The opposite view in the literature, however, wanted to affirm the lack of leadership, even if the representative body is unwilling or unavailable to act (like this: Gehrlein , BB 2008, 846, 848). The court rejected such a broad interpretation of the new bankruptcy obligation to protect the shareholders but strictly.
Römermann had been rightly been pointed out that the wording of § 15 paragraph 1, sentence 2 InsO with this understanding of the standard is unztreffend, because the requirement to submit meet to does not "also" the interests beside the dead director, but only these.
The protection of shareholders lodged by the court here in the foreground appears, indeed necessary, as it is not sufficiently clear as to when (and for whom exactly) an unavailability of the manager is likely then. Considering, however, that should be made more difficult with the new rules, the so-called corporate funeral, and that these commercial companies Services often use the appointment of not more later-find managers, the dismissal of members appears from its duty as long as actually a manager there is not any doubt sublime.
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