Die Gesch\u00e4ftsf\u00fchrerhaftung ist ein heikles Thema: Das Gesetz bestimmt, dass die Gesch\u00e4ftsf\u00fchrer in den Angelegenheiten der Gesellschaft die Sorgfalt eines ordentlichen Gesch\u00e4ftsmannes anzuwenden haben. Ein Gesch\u00e4ftsf\u00fchrer, der seine Pflichten verletzt, haftet der Gesellschaft f\u00fcr den entstandenen Schaden. Sch\u00fctzen kann ihn und die Gesellschaft eine D&O-Versicherung.<\/p>\n
Author:<\/em> The essential duty of a managing director is to protect the economic advantage of the company. The managing director must promote the interests of the company within the framework of the laws, the partnership agreement and the resolutions binding for the management, i.e. protect the company's possible advantages and prevent or avert damage to it (OLG Zweibr\u00fccken, judgment of December 22, 1998 - Ref: 8 U 98\/98; OLG D\u00fcsseldorf, judgment of November 25, 1993 - Ref: 6 U 245\/92), but at the same time comply with the limits set by the legal system. Managing director liability is therefore a real risk that more and more managing directors are exposed to<\/p>\n The managing director's duty therefore includes, in particular, preventing the company from being placed in a worse position in its legal position: Every managing director is particularly obliged to avoid concluding disadvantageous contracts (BGH, judgment of February 21, 2005 - II ZR 112\/03, DStR 2005 , 659 - Conclusion of a rental purchase agreement for items that cannot be used by the company). He is also not allowed to allow the company's claims to become statute-barred. He must therefore take appropriate measures in good time to prevent the statute of limitations from occurring (BGH, judgment of December 9, 1991 - Ref: II ZR 43\/91 - non-assertion of exemption claims against shareholders; OLG Koblenz, judgment of February 26, 2007 - Ref: 12 U 1597\/05 - failure to assert due claims in a timely manner; Cologne Higher Regional Court, judgment of June 29, 2000 - Ref: 18 U 31\/00 - failure to take measures to interrupt the statute of limitations with regard to liability claims made by the company against the managing directors themselves). Otherwise, he owes compensation according to the principles of managing director liability<\/p>\n If the managing director does not have his own legal knowledge, he must also seek the advice of a qualified, independent lawyer, such as a specialist lawyer in commercial and corporate law or, in international cases, a specialist lawyer in international business law (KG, judgment of February 24, 2011 - Ref: 19 U 83\/10, GmbHR 2011, 477 - Failure to obtain legal advice; BGH, judgment of September 20, 2011 - Ref: II ZR 234\/09, BGH ZIP 2011, 2097; OLG Stuttgart, judgment of November 25, 2009 - Ref : 20 U 5\/09 NZG 2010, 141 \u2013 on lack of legal knowledge). If he wants to avoid liability as a director, he must not rely on his \u201cgut feeling\u201d or his \u201cexperience\u201d.<\/p>\n It should be noted, however, that according to the case law of the BGH (judgment of April 21, 1997 - Ref: II ZR 175\/95), every managing director must be granted a wide scope of action, without which entrepreneurial activity is inconceivable. In particular, the managing director is obliged to exhaust all of the company's available sources of information and to carefully determine the basis of his decision. A violation of this can trigger his managing director liability. What is relevant is what information a responsible managing director considers to be relevant to the decision in the specific situation and would therefore obtain. In addition to consciously taking business risks, this scope for action also includes the risk of incorrect judgments and misjudgments to which every company manager is exposed, no matter how responsibly they act. An essential feature of the business decision is the forecast made by the managing director of the future effects of his decision.<\/p>\n However, when claims are threatened with a statute of limitations, the prognosis is usually clear. If no measures are taken to prevent the statute of limitations, claims are no longer enforceable. At best, there may be scope for assessment to consider whether the expected costs are appropriate given the amount of a claim. This applies in particular if objections are raised against the claims or if the opponent is not solvent. However, this will always require obtaining legal advice. But: If the managing director's decision is within the scope of his discretion, there is no room for managing director liability, even if the company suffers damage.<\/p>\n According to its wording, Section 43 GmbHG only covers GmbH managing directors. However, according to the case law of the BGH, Section 43 GmbHG applies accordingly to managing director liability in GmbH & Co. KG. The BGH (BGH, judgment of June 18, 2013 - Ref: II ZR 86\/11, ZIP 2013, 1712; BGH, judgment of February 25, 2002 - Ref: II ZR 236\/00, ZIP 2002, 984; BGH , judgment of March 24, 1980 - Az: II ZR 213\/77, NJW 1980, 1524; BGH, judgment of November 12, 1979 - Az: II ZR 174\/77, NJW 1980, 589) has the protective effect of \u00a7 43 GmbHG for the GmbH & Co KG and thus a direct claim of the KG against the managing director of its personally liable GmbH is recognized. According to this case law of the BGH, the prerequisite is that the sole or essential task of the general partner GmbH is to manage the business of the KG.<\/p>\n Eine directors & officers – Versicherung, kurz D&O-Versicherung, tritt f\u00fcr Sch\u00e4den ein, die Organe einer Gesellschaft, insbesondere Gesch\u00e4ftsf\u00fchrer und Vorst\u00e4nde, durch ihre Pflichtverletzung verursachen. Regelm\u00e4\u00dfig erh\u00e4lt die Gesellschaft jedoch keinen direkten Anspruch gegen die D&O-Versicherung, sondern muss zun\u00e4chst gegen den Gesch\u00e4ftsf\u00fchrer pers\u00f6nlich vorgehen, notfalls sogar gerichtlich. Nach dem claims made \u2013 Prinzip muss die Gesellschaft daher ernstlich gegen den Gesch\u00e4ftsf\u00fchrer wegen seiner Gesch\u00e4ftsf\u00fchrerhaftung vorgehen; andernfalls besteht keine Eintrittspflicht.<\/p>\n
\ndr Christian Andrelang, LL.M.<\/em>
\nLawyer<\/em>
\nSpecialist lawyer for international business law Specialist lawyer for commercial and corporate law<\/em><\/p>\nManaging director liability: The duties of the managing director<\/h2>\n
Managing Director Liability: Entrepreneurial Discretion<\/h2>\n
Managing director liability: Also in GmbH & Co. KG<\/h2>\n
Managing director liability: D&O insurance<\/h2>\n
Managing director liability \u2013 what is important?<\/h2>\n