Advisory board liability
Advisory boards of limited partnerships (KG) or apartment owners associations have an important monitoring function, but are often volunteer or work for little money. The liability bases do not result from the law, but are shaped by judicial law.
According to the established case law of the Federal Court of Justice , the advisory board of a limited partnership or an association of apartment owners is liable in the same way as the supervisory board of a stock corporation (AG) if it has been assigned monitoring tasks similar to the (optional) supervisory board of the GmbH or the AG (cf. BGH WM 1977, 1221; WM 1983, 472; WM 1984, 1640). The standard of liability is measured in accordance with Sections 116 and 93 AktG ; As a rule, there is liability for any form of negligence and intent. The standard of diligentia quam in suis , Section 708 of the German Civil Code (BGB), customary in partnership law , is not to be applied. The rules on the burden of proof in Section 93 AktG (BGH WM 1979, 1425) also apply.
The majority of the shareholders or apartment owners can decide to take out liability insurance for the advisory board members, as this measure serves proper administration: The prospect of taking out advisory board insurance ensures that members can be won over to the often unpopular advisory board office. It cannot be objected to the insurance that everyone must insure themselves if they want to ( KG of July 19, 2004 - 24 W 203/02).
With the BilMoG, the federal government is planning the liability of supervisory boards and a. to be tightened by the fact that it wants to create an obligation according to which the supervisory board must bypass the executive board, build an independent controlling and thus improve supervision. Based on the analogies, the adoption of the regulations for advisory boards can also be assumed.
Sources and judgments
- Rinze: Liability of Advisory Board Members . In: NJW. 1992, 2790
