Die Insolvenzverursachungshaftung gemäß § 64 S. 3 GmbHG als Ausschüttungssperre nach dem Vorbild des Wrongful Trading

On 01 November 2008, when MoMiG came into force, the German legislator introduced a new management liability rule – the liability for causing insolvency pursuant to Sec. 64 sent. 3 GmbHG. In German legal literature, there was early consensus that such liability rule is a solvency-based payout block with a narrow scope of application.

Under English law, creditors of limited liability companies are traditionally protected by solvency-oriented payout blocks, the interpretation of which rather follows a prevention than a compensation concept. Against this background, the author develops an interpretation model oriented towards the English wrongful trading rule and focused on the optimization of the prevention concept which he then applies to the liability for causing insolvency, whereby he gives such liability rule a meaningful scope of application and at the same time calls into question the future relevance of the balance sheet-oriented payout block pursuant to Sec. 30 (1) GmbHG.