China

Foundation of a company

Yes, it is possible to set up a company in Germany from abroad. Here are the main steps and some important information:

1. Choose legal form: Firstly, you must decide what legal form the company should take (e.g. GmbH, UG (haftungsbeschränkt), AG, etc.). The most common choice of foreign founders is the GmbH (limited liability company).
2. Business address: A German business address is required. This can also be a virtual office, as long as you can use the address as an official company address.
3. Notarisation: The formation of a GmbH or UG (haftungsbeschränkt) must be notarised. This can also be done by power of attorney so that you as the founder do not have to be present in person in Germany.
4. Aarticles of association: We can draw up and notarise the articles of association for you.
5. Share capital: A minimum share capital of 25,000 euros is required to set up a GmbH, whereby you must pay in at least half (12,500 euros) when setting up the company. The minimum share capital for a UG (haftungsbeschränkt) is 1 euro.
6. Commercial register entry: You must have the company entered in the commercial register. We will prepare the necessary commercial register application for you.
7. Tax number and business registration: After entry in the commercial register, the company must apply for a tax number from the tax office and register the business with the relevant trade office.
8. Bank account: You must open a German bank account to deposit the share capital.
9. Managing Director: The company requires at least one managing director. This does not necessarily have to be based in Germany.
10. Special feature for married shareholders: According to Chinese matrimonial property law, the matrimonial property regime of community of accrued gains applies to married couples. Joint property means that the assets before the marriage belong to each spouse alone and the assets acquired during the marriage belong to both spouses. If a partner is married and Chinese matrimonial property law applies, this can be problematic under certain circumstances if only one spouse becomes a partner. Although only one spouse is a shareholder, the other spouse may also own a share in the company under Chinese law.
    However, we can include a special provision (transfer restriction clause) in the articles of association so that, according to the prevailing view in German legal literature, the share belongs to only one spouse. This special provision (transfer restriction clause) is not possible if the statutory model protocol is used.

Please also let us know whether you would like to form the company using the statutory model protocol or whether you would like a more detailed articles of association with more detailed provisions. It is cheaper to form a company using the statutory model protocol. However, as the model protocol is very concise, it is only recommended for one-man/woman companies. In particular for a GmbH with several shareholders, the model protocol lacks a number of important regulations (e.g. holding shareholders' meetings, restrictions on sale, succession, redemption, pre-acquisition rights). The same applies if you initially set up your company alone, but would like to add further shareholders at a later date.

It is therefore generally advisable to draft your articles of association in more detail and individually. Please contact us about this. We will be happy to prepare your articles of association for you. You do not need to draft the contract yourself and this will not save you any costs. In fact, the costs of notarization are always the same for an individual partnership agreement (i.e. one that does not correspond to the statutory model protocol), regardless of whether you draft the agreement yourself or whether we draft it for you. We therefore recommend that you take advantage of our experience in drafting articles of association and let us prepare everything for you. You can use the time saved in this way for the many other preparatory steps of your entrepreneurial activity.

Representation at the notarisation appointment

You do not have to travel to Germany especially for the notarisation appointment, but can have the deed approved by a notary in China (not for one-person incorporation!) or you can grant a power of attorney to a representative in advance. Please note that the notary's note in China must be translated into German. An apostille must also be affixed to the declaration of authorisation or power of attorney. We will prepare the draft of the declaration of authorisation or power of attorney for you.

Step 1: Notarised deed

Please contact the relevant notary's office with the draft declaration of authorisation or power of attorney, which can issue deeds for use abroad.

The notary's office can often also prepare translations or have them prepared. When using deeds in Germany, it is advisable to always ask the notary for a German translation.

Here you can find the contact information of some notary's offices in China:

Step 2: Apostille

The relevant Chinese Foreign Affairs Office of the respective province or city must then affix an apostille to the notarised document. You can find a list of the relevant foreign affairs offices here. As a rule, the foreign office of the province in which the notarial deed was issued is responsible.

Contacts and addresses of some external offices are listed here. The contact details of the external offices not included in this list can be obtained by calling directory enquiry 114.