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A limited company (GmbH) is a legal entity of private law, in whom other legal or natural persons with a cash investment take part.
As a legal entity the GmbH has independent rights and obligations: she can be locked property be acquired, contracts and complained and sued before court. In addition the GmbH is responsible to the creditors for commitments opposite unrestrictedly with the own fortune of the society. The partners however cling only up to the height of their insert, not with their remaining (private) fortune.
Other abbreviations of the company form are among other things GesmbH (in Austria), ltd. (in connection with that written out word society like e.g. in XYZ development company ltd.) or gGmbH (non-profit limited company).
(Legal status: June 2005)
The GmbH is considered as a commercial company in the sense of the commercial code. The special legal bases of a GmbH are in the law concerning the limited companies (GmbHG) from 20 April 1892, last changed by law of the 22.03.2005.GmbHG with law in the Internet (http://www.gesetze-im-internet.de/gmbhg/index.html)
A natural person, a legal entity or several natural and/or legal entities specify the statute of the future GmbH in articles of association (model contract), notarially which can be recorded. The abbreviation GmbH ith G. is called "limited company in establishment". The additive ith G. points out that the society is still in the establishment phase as preGmbH. In this phase the society is already part legally responsible, can be registered thus for example as an owner into the land register. However the partners before the entry cling into the trade register, if they act in the name of the GmbH, unrestrictedly, directly and solidary ("§ 11 exp. 2 GmbHG). It is not necessary that one possesses natural person taken part the German nationality at the establishment of GmbH.
The statute of the GmbH must contain:
The GmbH is with the registry office (district court), in whose district it has its seat to announce for entry into the trade register (department of B). The registration may be made only if at least one quarter of the investment and at least one amount are deposited at height of half of the minimum capital stock. If only one partner is present, a safety device is to order for the remaining part of the capital paid in ("§ 7 exp. 2 GmbHG). After registration the examination finally takes place via the registry office and the konstitutive entry.
The GmbH must have one or more managing directors ("§ 6 exp. 1 GmbHG). Managing directors know only natural, unrestrictedly competent persons its ("§ 6 exp. 2 sentence 1 GmbHG). The managing directors lead the business of the GmbH after the instructions of the company meeting and in the context of law and statute ("§ 37 exp. 1 GmbHG). The managing directors represent the GmbH judicially and opposite out of court third ("§ 35 exp. 1 GmbHG). The right of representation of the managing directors is third opposite unrestrictedly and illimitably ("§ 37 exp. 2 sentence 1 GmbHG). The managing directors have the care of a tidy businessman in affairs of the GmbH to use ("§ 43 exp. 1 GmbHG). are permissible only if they are expressly permitted in the articles of association or by partner resolution ("§ 181 BGB).
In the statute of the GmbH a supervisory board can be planned. A supervisory board must be formed, if the GmbH employs more than 500 employees. Its task predominantly exists in the monitoring of the management.
Highest (terminal) organ of the GmbH is the whole of the partners (company meeting). Their competence extends - so far law or statute something else does not determine - to all affairs of the GmbH ("§ 45 GmbHG). The partners seize their resolutions in the company meeting ("§ 48 exp. 1 GmbHG). With agreement of all partners written tuning is permissible ("§ 48 exp. 2 GmbHG).
To the GmbH in principle the regulations of the commercial code apply over record keeping ("§"§ 238 to 263 HGB) as well as supplementing "§"§ the 264 to 335 HGB for finance companies.
Each partner transferred an obligation in the articles of association for the achievement of a portion of the capital stock (investment - "§ 3 exp. 1 No. 4 GmbHG). The third-party liability of a partner consists of fulfilling its investment obligation ("§ 19 exp. 1 GmbHG). A business share can be sold, an appropriate contract must be notarially recorded ("§ 15 exp. 3 GmbHG). The partners have requirement on the yearly surplus, as far as she does not permissible-prove is excluded from the participation ("§ 29 exp. 1 GmbHG). Each partner can require of the managing directors the fact that they give him information immediately over the affairs of the GmbH and it permits insight into the books ("§ 51a exp. 1 GmbHG). A partner can be excluded by judicial judgement from the society, if an important reason lying in its person makes the continuation of the society with him unreasonable.
A GmbH is as finance company and a legal entity its own tax subject. It is subject to that with its income body-expensively. Present control item 25% plus 5,5% solidarity tax on body-expensively. GmbHs can be tax-exempt however also as "non-profit GmbH" ("gGmbH") with an appropriate object of the company.
If the GmbH pours profit to its partners out (dividend), it must retain of it capital return-expensively (control item at present 20%) and to the tax office to exhaust. The further tax treatment of the dividend and the retained capital return-expensively with the partner depends on whether the partner is a natural or legal entity with domicile and/or seat abroad in or.
A GmbH is considered as a commercial company in the sense of the HGB ("§ 13 exp. 3 GmbHG). It is thus industrial concern strength legal form and is subject independently of their enterprise purpose of the trade tax.
A GmbH can be Unternehmerin in the sense of the value added tax right. The evaluation takes place after the same principles as with natural persons ("§ 2 UStG).
If the GmbH employs employees, it has to fulfill the wage-fiscal obligations of an employer. That applies also in relation to (partner) the managing directors, whose purchases are assigned to the income from not-independent work (employee). The managing director salaries are deductible as operating expenditure.
A GmbH is dissolved among other things:
The dissolution of the society must be announced for entry in the trade register. The managing directors are the "born" liquidators, if nothing else is certain. In the opened insolvency procedure the liquidation of the GmbH does not take place via the managing directors. If the insolvency procedure is rejected for lack of mass, then the managing directors are the liquidators, if nothing else is certain.
GmbHs were made possible for the first time by on 20 April 1892 the issued GmbH law. After the creation of this company form in Germany the concept in the whole world spread. First in Austria 1906, then in Portugal 1917, Brazil 1919, Slowakei 1920, Chile 1923, France 1925, Belgium 1935 and further countries comparable possibilities were created.
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