“GmbH Company Share: General Information, Garnishment, Effect of Seizure, and Utilization Scenarios”

1. General information on the company share of a GmbH

The share of a GmbH guarantees the membership in the GmbH itself and gives the shareholder the shareholder rights in a GmbH. Only those who own a share can be a shareholder in the GmbH.

If a debtor is the sole shareholder or co-shareholder of a GmbH, his share can generally be seized according to Section 15 (1) GmbHG.

A creditor can therefore enforce against this debtor’s asset.

About § 9 HGB i. In conjunction with § 40 GmbHG, a creditor can check the list of shareholders of the GmbH at the responsible registration court whether the debtor is a shareholder of the GmbH and how many shares the debtor holds.

2. The garnishment of the company share

According to § 857 ZPO, the company share of a GmbH represents a so-called “other property right” which can be seized.

The garnishment of the company share has of the GmbH as a third-party debtor by means of a seizure and transfer order. Compensation and ancillary claims are also directed against the company.

The delivery of the garnishment and transfer order must be in accordance with § 170 ZPO vs. be made to the managing director(s) of the GmbH.

3. Effect of seizure of a GmbH company share

The seizure of one or more GmbH shares of the debtor also includes the following rights and/or claims:

• the right to payment of the settlement balance in the event of liquidation (§ 72 GmbHG);
• the right to the appropriation of earnings according to § 29 GmbHG;
• the right to repayment of a capital contribution after a capital reduction (§ 58 GmbHG);
• the entitlement to payment of the excess proceeds from an auction pursuant to Section 27 (2) GmbHG;
• the repayment claim within the meaning of Section 30 (2) GmbHG;
• the claim for compensation due to cancellation of one or more shares according to § 34 GmbHG.

4. Possible “utilization scenarios” for the GmbH company share

After the seizure of the GmbH share, the following scenarios can occur:

a) Collection of the company share by the other shareholders

In the articles of association of a GmbH, there is regularly the statutory regulation that if a company share is attached, this can/may be confiscated (priority!) by the other shareholders (§ 34 GmbHG).

The creditor then does not receive any “corporate rights” in the GmbH, but thereby obtains a full value replacement claim/compensation claim.

b) Realization of the company share by the creditor himself

If a collection clause is not included in the articles of association or if the other shareholders do not make use of it, the creditor can put the GmbH into liquidation by exercising the right of termination (§§ 60 ff. GmbHG). At the end of the liquidation, he then receives the liquidation surplus attributable to the attached share.

c) Auction of the company share by the bailiff

If the articles of incorporation do not provide for termination of the company by a shareholder, the company share must be realized via § 844 ZPO. This is usually done by public auction of the company share by the bailiff according to § 814 ZPO. The purchaser then obtains the company share and moves into the “partner position”. The creditor is satisfied from the proceeds of the auction.

This article does not constitute concrete and individual legal advice, but only provides a rough initial overview of the very complex legal matter described. You can only obtain legal certainty for your specific case constellation through coordinated examination and advice from a competent lawyer.

I am happy to be at your disposal as a lawyer and specialist lawyer for a legal assessment and assessment of your case and represent your interests assertively and resolutely. of the company and the (co-)shareholders. Feel free to contact me by phone or write to me.

I advise nationwide on site or via zoom as a specialist lawyer in the areas of corporate law, tax law and insolvency law, especially in the cities and metropolitan areas around Stuttgart, Heilbronn, Karlsruhe, Freiburg, Ulm, Augsburg, Munich, Frankfurt, Wiesbaden, Saarbrücken, Kaiserslautern, Bonn, Wuppertal, Duisburg, Nuremberg, Munster, Saarbrücken, Düsseldorf, Cologne, Dortmund, Hanover, Kassel, Leipzig, Dresden, Bremen, Hamburg and Berlin.

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