Benefits and Drawbacks
(e) Liability as shadow director
Consequently, wording, purpose, and systematics suggest that § 117 (1) covers the impact exercised by active shareholders pursuing opportunistic goals and applying intensive pressure to administrative members, rendering their reference to § 76 (1) ineffective.1714
Furthermore, the corporation needs to suffer from damage based on the impact, which has to be kept strictly separate from damage resulting from entrepreneurial risk. The looting of a corporation would be relevant damage. Another example is a decreased stock price caused by the impact of active shareholders pursuing deviating interests based on empty voting or costlier participations in constituent or competing corporations. The same applies to a financially negative corporate disposition.1715 More generally, it comprises the results of the shareholder impact following a corporate strategy opposed to that of management, which has proven to be detrimental to the corporation.1716
Finally, the concerned impact has to be illegal and the offender needs to have acted intentionally. The illegality exists if the impacted member of the administration objectively breaches his duty. The intent requires the knowledge about the breach of duty and the general suitability of the action or omission to damage the corporation. Dolus eventualis suffices.1717 As a consequence, even active shareholders who coerce administrative members to act according to their deviating interests no matter what the consequences for the targeted corporation may be are liable under § 117 (1) if the targeted corporation suffers a damage.
The plaintiff, the corporation or the shareholders, need to demonstrate that the preconditions of § 117...