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Sammy Guidoum
Last Name
Guidoum
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Sammy
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PublicationType: book section
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PublicationDividenden und Rückzahlungen der gesetzlichen Kapitalreserve bei der Aktiengesellschaft Konzeptionelle Aspekte, Voraussetzungen und VerletzungsfolgenOn 1 January 2023, the new Swiss corporate law 2020 entered into force. The new law introduces numerous changes regarding dividend distributions. The most significant changes include the newly introduced differentiation between actual «dividends» (distribution of profit reserves) and «repayments of the statutory capital reserve», as well as the new regulation on interim dividends. Also the revised reserve and accounting provisions, the newly permissible share capital in a foreign currency and other changes have an impact on the modalities of future dividend distributions. However, this thesis does not limit itself to a presentation of the legislative amendments in the area of dividend payments. Rather, it takes the corporate law revision 2020 as its starting point to subject the legal institution of dividend distributions to a holistic examination. This also includes a systematic analysis of the new instrument of repayment of statutory capital reserves. The aim is to raise and answer the most important legal questions relating to dividend distributions that remained unanswered under the previous corporate law as well as those that have arisen under the new law. It is shown that the law allows distributions to shareholders in the form of dividends or repayments of statutory capital reserves only if a series of strict conditions are met. Under the revised corporate law, the flexibility to transfer freely disposable equity to shareholders is increased since interim dividends are now explicitly permissible. However, these and other changes in the law, in particular the introduction of the new instrument of repayment of statutory capital reserves, increase the complexity of the distribution regulations. It is notable how much of an effort the legislator has put into preventing unjustified distributions to shareholders in the most recent and earlier corporate law revisions. This effort can be justified by the fact that a once valid distribution resolution passed by the shareholders' general meeting, gives rise to ordinary creditors' claims of the shareholders. The shareholders thus have the right to enforce such claims regardless of the further development of the company's financial situation. For those involved in a distribution, however, the high complexity of the distribution regulations bears the risk that dividends payments or repayments of statutory capital reserves are not carried out in accordance with the law. Such non-compliance can not only lead to shareholders having to repay unjustified dividends or repayments of statutory capital reserves. For the governing bodies, especially the board of directors, civil and, in severe cases, criminal liability issues may arise. Therefore, they are well advised to always carefully and conscientiously check compliance with all requirements before distributing dividends or making repayments of statutory capital reserves.Type: doctoral thesis