This master's thesis focuses on protection of creditors in the procedures of a share capital reduction both in stock corporation (d. d.) and limited liability company (d. o. o.), namely ordinary and simplified capital reduction, and capital reduction through the withdrawal of stocks or business shares. The research is based on the principle of capital maintenance, which constitutes one of the fundamental principles of company law and serves to protect creditors by restricting distributions from the company's assets designated for the satisfaction of its obligations. Since a reduction of share capital directly affects the company's guarantee fund, the adequacy of the legal mechanisms designed to protect creditors becomes a matter of particular importance. The thesis analyses the differences between the individual procedures and assesses their justification from the perspective of creditor protection.
Firstly, attention is devoted to creditor protection mechanisms in ordinary capital reduction, where the Slovenian Companies Act (ZGD-1) establishes the most comprehensive system of protection. This procedure combines preventive (ex-ante) and subsequent (ex-post) safeguards, including creditors’ rights to security or satisfaction of claims, restrictions on distributions, and the institution of the registration blockade. Ordinary capital reduction allows for a derogation from one of the core prohibitions inherent in the principle of capital maintenance, namely the prohibition on the repayment of shareholders' contributions. The thesis further examines simplified capital reduction, which primary purpose is the financial restructuring of the company and where creditor protection is particularly based on the allocation of released funds and accounting restrictions. In this context, special attention is drawn to a regulatory gap in Article 380 of ZGD-1, which may allow circumvention of rules intended to protect creditors. Lastly, creditor protection is analyzed in relation to capital reduction through withdrawal of stocks or business shares, where the scope of protection depends on the method of withdrawal and the characteristics of stock corporation and limited liability company. Within this framework, the thesis addresses the issue of the mutatis mutandis application of rules governing stock corporations to limited liability companies and highlights the difficulties arising from the fundamental differences between stocks and business shares.
As the Slovenian regulation of capital reduction and creditor protection is largely modelled on German company law, the thesis also includes a comparative analysis of the German legal framework. This comparison facilitates a deeper understanding of the underlying concepts of creditor protection and identifies solutions that have either not been fully adopted by the Slovenian legislator or have been implemented differently. On this basis, the thesis evaluates the strengths and weaknesses of the current Slovenian regulation and proposes possible improvements, particularly with regard to simplified capital reduction and capital reduction through withdrawal of business shares in limited liability companies.
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