Appointment (office)
The order is in corporate law and in the organization theory , the appointment of organ trustees . The opposite is dismissal .
General
Apply as an organ Walter organization right individuals , which by the legal system intended tasks and functions of an organ of a company exercise. Institutions and corporations under public law are not companies, but they belong to the associations of persons for which administrators work.
A natural person can only become an administrator by appointment. The appointment is a unilateral legal transaction between the administrator to be appointed and the legal entity making the appointment . It requires for its Legal validity of the assumption of being assigned office by the appointed person. A distinction must be made between the appointment resolution as a corporate act and the legal declaration of appointment to the person appointed as the basis of the employment contract. The employment contract to be separated from the order is a service contract according to § 611 BGB with an employment law background, while the order is to be classified under company law .
species
The legal norms for the appointment of administrators for the individual legal forms differ considerably from one another.
Societies
The association may only be entered in the association register if, among other things, the association's board has been appointed (§ § 26 , § 59 BGB). The appointment of the board of the association, which can be revoked at any time, is made by resolution of the general assembly ( Section 27 (1) BGB).
By law, the management of partnerships is exclusively the responsibility of the personally liable partners ( OHG : Section 114 (1) HGB , KG : Section 164 ). Their appointment is therefore stipulated by law, which is not mandatory .
In the case of a stock corporation (AG), the management board is appointed by the supervisory board ( Section 84 (1 ) AktG ). The members of the supervisory board, in turn, are elected by the general meeting, unless they are employee representatives ( Section 101 (1) AktG). According to Section 30 (1) AktG, the first supervisory board is to be appointed by the founder when the company is founded , which requires notarial certification .
In the case of the GmbH , the establishment of the organ relationship between the managing director and the company is realized through his appointment. In contrast to the AG, the managing directors are appointed by the articles of association ( § 6 Paragraph 3 GmbHG ) or by the shareholders' meeting ( § 46 No. 5 GmbHG).
The auditor of the annual financial statements is elected by the shareholders in accordance with Section 318 (1) HGB, i.e. by the general meeting ( shareholders ), shareholders' meeting or general meeting .
The apartment owners' meeting appoints the apartment property management with a majority of votes in accordance with Section 26 WEG .
Order in public law
The organs of the institutions and corporations under public law are also appointed by appointment. The appointment serves here as a procedure for filling public offices or functions. This means that self-administration can be influenced from outside . This applies to the management bodies ( board of directors , management , presidium , chief executive officer ) and control bodies ( administrative board , supervisory board , advisory board ). The appointment is regulated in their statutes or by special legal norms and can be part of the career in the public service . A public official is someone who has been appointed to a public office ; A judge is someone who is appointed to exercise a public judicial office.
Examples of appointments from corporations under public law:
- Appointment of the rector of universities according to § 82 Sächs HSFG ,
- Appointment as a notary in accordance with Section 1 of the Federal Notary Code (BNotO)
- Appointment as tax consultant in accordance with § § 40 et seq. Steuerberatungsgesetz (StBerG).
The public appointment according to § 36 Abs. 1 GewO is not a professional license , but the recognition of a special expertise in a certain subject area , which gives the report of a sworn expert an increased value. It serves the sole purpose of providing authorities , courts and private clients with experts who have been checked by the Chamber of Commerce and Industry .
According to § 41 Para. 1q GemO NRW, the municipal council is responsible for appointing and dismissing the management and the auditor of the local audit .
Order in other organizations
In other organs and organizations (e.g. for occupational safety in companies ) certain functions are filled by appointment: Examples of appointments to other institutions or for other purposes:
- Appointment as company doctor , the occupational health and safety or to the safety officer according to Occupational Safety Act ,
- Appointment as radiation protection officer in accordance with the Radiation Protection Ordinance or X-ray Ordinance ,
- Appointment as fire protection officer , data protection officer , equal opportunities officer or
- Appointment of an expert , a guardian , a supervisor , an arbitrator in the legal field.
However, the order as such is not sufficient to be able to perform the function associated with the order.
Follow the order
The appointment is made through the suggestion of one or more people who are then elected by the responsible body. The order is only legally binding once you have chosen and accepted the (positive) election result by the appointed person . The appointment is only rarely a unilateral legal act that requires neither the election nor the consent of third parties (e.g. for ex officio appointments or for representatives in administrative proceedings according to Section 1913 BGB). If the legally effective appointment leads to an employment relationship (only for the board of directors, management), an employment contract (service contract) must be concluded with the appointed person, which specifies their tasks. While the appointment must take place before the conclusion of the employment or service contract, the dismissal provides the reason for the termination of the employment or service contract.
Demarcation
The appointment forms part of an appointment or calling , but is not to be confused with these.
Individual evidence
- ↑ Jürgen Ellenberger / Otto Palandt , BGB Commentary , 73rd edition, 2014, § 27 Rn. 1
- ↑ Erich Steffen, BGB - RGRK , 1982, § 27 Rn. 3
- ↑ BGHZ 52, 316, 321
- ↑ Werner Schubert (Ed.), Sources on the reform of the criminal and criminal procedure law: Sessions from December 1930 - March 1932 , 1997, p. 358
- ↑ Klaus G. Cors, Handbook of Experts , 2006, p. 201
- ↑ Ulrich Eisenhardt / Ulrich Wackerbarth, Corporate Law I , 2015, p. 284
