The Thuringian Higher Regional Court (6 U 761/07) also on the applicability of the existing case law rules taken a position: In the opinion of the Court of existing law are coming too the entry into force of the MoMiG then continue to apply if both the granting and repayment of the capital-replacing shareholder loan was made before the 01.11.2008. This corresponds to the outcome of the case law of the Federal Supreme Court (see previous posting inseparable ).
lawyer Dr. Stefan Lammel has made at this point interesting thoughts on a possible further expansion of this law. He starts the idea that the law, it could even be satisfied that only the loan was performed prior to 01.11.2008 (regardless of whether the loan was repaid well before 01/11/2008). Thus the number of "old cases" would, on which the old rules of equity substitution law but its application, then expanded significantly.
An interesting question, and ultimately to the recent judgments in fact, still unresolved question of the applicability of the existing case law rules. In my opinion, such an expansion of the scope should, however, the character of the loan agreement precluding a permanent obligation. Would therefore significantly to the repayment of the loan must be to an end. It remains however to be seen how the case law on this question nor comment.
Link to Urtei l (via Dr. Schmidt Verlag)
