Der Schutz des Abfindungsinteresses des zwangsweise ausscheidenden GmbH-Gesellschafters

By decision of 24 January 2012 (II ZR 109/11) the German Federal Supreme Court ruled that shareholders of a German private limited company (GmbH) have to compensate a shareholder personally (pro rata of their shareholding) who has been excluded by way of a compulsory redemption of shares (Zwangseinziehung) if the company cannot pay the compensation without violating the capital maintenance provisions. The court, however, did not explicitly state the dogmatic foundation of this liability.

Therefore, the study examines whether and how such personal shareholder liability can be dogmatically justified. The dogmatic foundation of this personal liability is not merely an academic problem: It is the precondition for the answer to various practical questions relating to the specific features of the personal liability of the remaining shareholders. Further, the study examines the impact of the court’s decision on “the exclusion and the withdrawal of shareholders for cause”.