The “poisoned” shareholder loan in the crisis and the imminent challenge to insolvency

2. Legal treatment of the shareholder loan

shareholder loan will legally different processed and classified as a loan from a third party to society.

Shareholder loans are considered a Mixed form of debt and equity financing Viewed. Here, a shareholder as “company owner” enters into a loan agreement with the company. Because of its position as a shareholder and proximity to the company However, he has significantly more opportunities to influence society than an ordinary creditor. In particular, a shareholder – in contrast to the other creditors – has a knowledge advantage and also has it possibilityyourself that loan fully or partially must be repaid in the short term.

In case of bankruptcy becomes a shareholder loan according to § 39 Abs. 1 no. 5 InsO treated as equity and as subordinate classified. From an economic point of view, this basically means a “total loss” for the shareholder in the event of insolvency, since the bankruptcy creditors are primarily served according to § 38 InsO.

3. Cases corresponding to shareholder loans

However, a demand for repayment in the event of insolvency does not only threaten a “classic” shareholder loan.

To prevent abuse of design, case law has so-called “comparable cases” to equated with shareholder loans.

In this context, the following corresponds to a typical shareholder loan:

  • Suspension of shareholder claims against the company;
  • To To leave salary or payment claims standing;
  • Payments after ordinary capital reduction;
  • Interest on loans;
  • Distribution of saved profits, etc.

In the constellations mentioned, a refund from the executor must also be expected in the event of insolvency.

4. The insolvency avoidance of § 135 InsO

Because of “Knowledge and action advantage” of the shareholder in the crisisas well as being subordinate in the event of insolvency Legislators created protective mechanisms, to prevent repayments during the crisis period or to regret.

This one should equal treatment of creditors is created by the insolvency administrator via Section 135 of the InsO The repayment of the loan can be required to be repaid in the annual period before the filing of the insolvency estate.

5. Recommendation for action

that legal constellations In this context versatile and complex.

In order to avoid challenges according to § 135 InsO, it is advisable to obtain legal advice for the provision of financial means in the relationship between the shareholder and the company. There are different here design models to prevent an insolvency legal challenge under Section 135 InsO.

Thus, among other things, z. B. based on special principles developed by jurisprudence, by agreeing a folio structure with a credit limit in the relationship between the shareholder and the company, the risk of regret can be significantly reduced. The contractual arrangements are decisive.

However, an insolvency law challenge can still be successfully defended in many cases by an experienced insolvency lawyer.

This article does not constitute concrete and individual legal advice, but merely provides a rough introductory overview of the described legal situation. In particular, it should be noted that the legal constellations and structures relating to the subject of “shareholder loans in the crisis” are extremely complex, and the above statements have been broken down heavily – for the sake of the reader’s understanding. You can only achieve legal certainty through a coordinated investigation and advice from a competent lawyer.

I am happy to help you and your company as a specialist lawyer and specialist in insolvency law.

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