De turboliquidatie van de BV (VDHI nr. 131) 2016/15.2.1.12:15.2.1.12 Directors’ liability under Book 2, Section 248 of the Dutch Civil Code

De turboliquidatie van de BV (VDHI nr. 131) 2016/15.2.1.12

15.2.1.12 Directors’ liability under Book 2, Section 248 of the Dutch Civil Code

Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.Deze functie is alleen te gebruiken als je bent ingelogd.

Book 2, Section 248 of the Dutch Civil Code plays the same striking role as fraudulent conveyance: this provision can also be regarded as both the cause and the consequence of the liquidation order of the turbo-liquidated company. Opponents of my view that Book 2, Section 248 of the Dutch Civil Code is an asset on the basis of which a turbo-liquidated company can be restored can be found in jurisprudence and literature. I believe this because it is desirable with a view to judicial efficiency and third-party protection, since in a situation in which there is an asset consisting of a potential claim under Book 2, Section 248 of the Dutch Civil Code, the creditor would not otherwise have an opportunity to collect such a claim.

In my opinion the board should prepare annual accounts for the shortened financial year for the turbo-liquidation of the company. For the board of a company this can only have benefits: discharge from liability can be granted in a separate discharge from liability resolution and the annual accounts can play an important part when the board is blamed in reopening proceedings for assets being present at the time of the dissolution.

Given the underlying thinking about the three-year period of Book 2, Section 248(6) of the Dutch Civil Code – that without such a time limit the effect of the provision would be too onerous for directors – it may be concluded that in the case of a fraudulent scheme, in which the board has deliberately chosen the turbo-liquidation while assets still existed, the three-year period should not apply.

Precisely because the vast majority of private companies are dissolved by means of the turbo-liquidation, it is crucial that the legal defects and loopholes in the existing provision are rectified by the legislature and that the misunderstandings about this that have arisen in the jurisprudence and literature are removed. With this in mind, a number of recommendations are made in the next chapter for legal practice but also for changes to the existing law.

Deze functie is alleen te gebruiken als je bent ingelogd.