Discharge (law)

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Discharge is the approval of the past activity of a body or body member by a competent control or monitoring body .

General

In legal relationships in which accountability over a longer-term agency by accounting is to give this obligation is offset by the Institute of relief as a correlate. Organs ( collegiate bodies and individual organs ) bear responsibility and must give an account of their activities, which their statement of accounts provides information about . The body responsible for relief element checked the activity for a past financial year or the annual report later and compares the results with the law , social contract , private or public statutes and corporate goals . If the activity or the statement of accounts agree with this, discharge can be granted. If the activity or the statement of accounts deviate from this negatively or if there are even breaches of duty , discharge will be refused.

Legal issues

As early as October 1940, the Reich Court of Justice (RG) made a distinction that is still recognized today between civil and corporate law relief. The discharge is not specifically regulated in the BGB , but is generally recognized in the law of agency. Also in the Corporate Law , the functional relationship between relief and accountability is detectable.

General

The relief comes in bodies of civil law and public law most frequently, specifically in the Management Board or the Supervisory Board of joint stock company , cooperative , Managing Director of the GmbH or Board of Directors . The same applies to partnerships ( civil partnership , general partnership or limited partnership ) for the unlimited general partners .

The federal government , the state governments , the administrative and management bodies of the municipalities (each through parliaments ), the statutory health insurance , the professional chambers ( chambers of crafts , chambers of industry and commerce , chambers of notaries , bar associations ), the public savings banks and broadcasting companies as well are relieved the condominium management and the administrative advisory board . There is further relief for natural persons for supervisors , insolvency administrators , executors and guardians .

Discharge of the federal government

In public law , discharge has more political than legal significance. The Federal Ministry of Finance as has 114 Art. Para. 1 GG and § 114 para. 1 BHO the Bundestag and the Bundesrat about all government revenues and government spending , as well as the Treasury and the public debt to put bill during the next financial year to relieve the federal government ( Art. 114 para. 1 GG). The Bundestag and Bundesrat grant or refuse this discharge due to their budgetary obligations . The application for discharge is connected with the submission of the annual accounts by the federal government. At the same time, the Federal Audit Office presents its audit of the budgetary management. Both are discussed in the Bundestag's audit committee, a sub-committee of the budget committee . The budget committee makes a recommendation as to whether the federal government should be granted discharge for the budget year. However, this discharge does not mean the legal institution of discharge.

Relief for stock corporations, cooperatives and GmbH

The general meeting of the stock corporation resolves in accordance with Section 119 (1) No. 3 AktG on the discharge of the members of the management and supervisory board. As a rule, the entire board of directors is discharged, unless the general meeting decides to discharge individual board members (Section 120 (1) AktG). With the discharge, the general meeting approves the management of the company by the members of the management board and the supervisory board in accordance with Section 120 (2) AktG . Discharge does not include a waiver of claims for damages (Section 120 (2) sentence 2 AktG). At the KGaA , pursuant to Section 285 (1) No. 2 AktG, the general meeting decides on the discharge of the personally liable partners and the supervisory board.

For the first time refused at a DAX - companies ( Bayer AG , the general meeting) on 26 April 2019, the Chief Executive Officer Werner Baumann and the remaining board discharge. She expressed her distrust in him because of the momentous company acquisition of Monsanto in June 2018.

In the case of the cooperative, the general assembly decides on the discharge of the board of directors and the supervisory board in accordance with Section 48 (1) GenG . The shareholders of the GmbH resolve in accordance with Section 46 No. 5 GmbHG on the discharge of the managing directors . In contrast to the AG, the discharge of the managing director by the shareholders results in the waiver of the compensation claims to which the GmbH is entitled (cf. § 46 No. 8 GmbHG). This waiver effect can also extend to enrichment claims.

A refused discharge also represents a withdrawal of confidence and can have a warning effect on outsiders, in particular the capital market , lenders and other creditors as well as rating agencies . Reasons for denial of discharge can be, for example, gross breach of duty or inability to conduct business properly. According to Section 84 (3) Sentence 2 AktG, the withdrawal of confidence entitles the Supervisory Board to dismiss the relevant Management Board member or members, unless this was done for obviously irrelevant reasons. Resolutions for discharge are contestable if the subject of the discharge is the conduct of the Management Board that involves a serious violation of the law or the articles of association or if there is a violation of the declaration of conformity of Section 161 AktG. In this case, a discharge decision can even be null and void.

Relief at the club

The association law of the BGB does not mention the discharge. However, since the accountability and accounting obligation of the association's board of directors to the association results from Section 27 (3) BGB in conjunction with Section 666 BGB, discharge from the association is also possible. Because the discharge of the association's board is not expressly regulated in law, there is only a right to discharge if the association's statutes provide a basis for this. An effective resolution on the discharge of the board of directors can only be made by the general assembly if this agenda item is expressly provided for in the agenda ( Section 32 (1) BGB). When voting on the discharge, the board of directors or the board members on whom the vote is taken may not vote. If this happens, the decision is incorrect ( § 34 BGB). The club confirmed to the Board by the relief that he properly fulfilled the tasks assigned to it in the sense of the association and the entrusted funds of the association has managed properly. Since the resources that the board has at their disposal do not belong to it, but on the other hand not detailed instructions can be given by the general meeting about each individual use, the discharge confirms to the board in retrospect that everything it does with the funds of the association has made, in the sense of which was and is responsible for it (no longer by the board personally).

The apartment owners' meeting also has the power to decide to relieve the condominium administration. The discharge resolution always corresponds to proper administration if there are no indications that the administrator is acting contrary to the discharge. After the discharge, the administration is no longer obliged to provide information about the discharge period. If the manager has been exonerated by the majority of the community of owners, although there are errors in the annual accounts or other claims against the manager (e.g. due to deficiencies in administration) are possible, the outvoted minority must take action against the majority resolution by way of an action for annulment the entry of the existing power to prevent the discharge decision.

Parties

Political parties are organized as an association. Association law therefore applies to the discharge of the party executive committee.

Social insurance agencies and associations of statutory health insurance physicians

In the area of social insurance agencies that operate in the form of a self-governing body, the meeting of representatives, as the highest body , has to decide annually on the discharge of the board of directors due to the accounting result in accordance with Section 77 (1) SGB ​​IV . The Federal Assembly of Representatives decides on the discharge of the federal executive board and the managing director due to the results of the accounts for the basic and cross-sectional tasks at the German Federal Pension Insurance Fund with a majority of at least two thirds of the weighted votes of the statutory number of members. The administrative board decides on the discharge of the board of the Federal Employment Agency . In the case of the general local , company and guild health insurance funds as well as the substitute health insurance funds , the administrative board, as a self-governing body, decides on the discharge of the board of directors as the managing body in accordance with Section 31 (3a) i. V. m. Section 35a, Paragraph 1 of Book IV of the Social Code. An audit must be carried out before the discharge decision is made . According to § 31 regulation on budgetary management in social insurance , which is based on the authorization in § 78 SGB ​​IV, this is expressly prescribed.

In the area of statutory health insurance and statutory health insurance associations , the assembly of representatives, as the highest self-governing body, has to resolve annually in accordance with Section 79 (3) SGB ​​V on the discharge of the board of directors for the annual accounts.

The discharge does not mean that the board of directors and managing directors are released from any liability that may exist . If the discharge is refused, the board of directors and the managing director are obliged to remedy justified complaints as far as possible or to take appropriate measures in the next financial year. The discharge resolution can oblige the management to investigate certain measures; it can contain requirements and specifications for further budget management.

Decision on discharge

Under company law, a decision on discharge always requires a simple majority of votes ( Section 133 (1) AktG, Section 47 (1) GmbHG, Section 43 (2) GenG). When voting, the members of the governing bodies concerned are prohibited from voting due to a conflict of interest if the resolution is aimed at "exonerating them or exempting them from any liability" ( Section 136 (1) AktG, similar to: Section 47 (4) GmbHG, Section 43 para 6 GenG and § 34 BGB).

Legal consequences

The discharge of managing directors of a GmbH works like a waiver of claims for damages or the acknowledgment of the non-existence of such claims. It is a unilateral corporate declaration that does not require acceptance and releases the exonerated from all claims for compensation that are recognizable when the resolution is passed.

In association law, the discharge has the meaning that it is intended to extinguish any existing claims for compensation, and acts like a waiver or a negative acknowledgment of guilt . Such a claim can therefore only be considered if the company is managed properly and all obligations have been fulfilled. The discharge acts like a "negative acknowledgment of guilt" in the sense of § 397 BGB, so that a discharged body does not have to fear any claims for damages after a discharge decision.

If discharge is refused to the entire management board, individual members of the management board or the supervisory board or individual members of the supervisory board or the other board members, the responsible body thereby expresses its disapproval of the administration , cash management or compliance with legal obligations . It thus reserves the right to assert any existing claims for damages, as long as this is not expressly waived in the decision on the refusal to exonerate. When denied relief is a statement of interest for negative declaratory action in any case before then, it is quite possible that compensation claims are asserted. Once a discharge resolution has been passed, it can only be removed by means of a legal challenge .

International

The Austrian Stock Corporation Act (AktG) stipulates in Section 104 (2) No. 3 AktG that the general meeting of the stock corporation has to decide on the discharge of the members of the supervisory board and management board for the previous financial year by means of a resolution. If a board member is granted discharge, the work of this board member in the past is generally approved and the trust for the future is testified. Unlike in Germany, the effect of the discharge is not regulated by law in Austria . According to case law , the discharge does not automatically lead to a waiver of claims for damages against the discharged member of the board. The discharge is only to be regarded as approval of the management or as an expression of confidence in them. According to case law, something else applies if all shareholders approve the discharge; it would have a presence of 100% of the shares at the General Meeting are present or to be represented and to vote for the discharge. In this case, the Supreme Court assumes that the company will waive compensation claims against the exonerated board members. The discharge resolution thus unfolds a liability-releasing effect in favor of the discharged board members.

The discharge of the association's board is also not provided for in the Austrian Association Act (VG). However, if, in accordance with Section 24 VG, a member of an association body, disregarding the care of a prudent and conscientious organ administrator, violates his statutory or statutory obligations or lawful resolutions of a competent association body, it is liable to the association for the resulting damage in accordance with Sections 1293 ff. ABGB ; this also applies accordingly to auditors. The association's statutes can, however, provide for discharge. If the executive board is then exonerated, this releases them from any liability.

In Switzerland , the discharge of organs is called "Décharge" ( German  discharge ) and is the subsequent approval of the business activities of the Board of Directors by the General Assembly ( Art. 698, Paragraph 2, Item 5 OR ). The resolution of the general meeting is only effective for facts that have been disclosed and only vis-à-vis the stock corporation and the shareholders who have approved the resolution or who have since acquired the shares with knowledge of the resolution ( Art. 758 (1) OR). The effect of the discharge is that the company waives claims for damages against the responsible persons. However, only known facts are recorded. Discharge is also provided for the Swiss GmbH ( Art. 804 Paragraph 1 No. 7 OR) and the Swiss Cooperative ( Art. 879 Paragraph 1 No. 4 OR).

literature

  • Urban Bacher / Katja Rade: Relief of Board Members - Practical Examples and Consequences of Failure to Relieve Managing Directors, Board Members and Supervisory Boards , in: WiSt 1/2013, pp. 41–43.

Individual evidence

  1. ↑ Friedrich Barner, The Discharge as an Institute of Association Law , 1990, p. 1
  2. ↑ a b c d RG, judgment of October 23, 1940, Az .: II 24/40 = DR 1941, 506
  3. ↑ Lars Rühlicke, Relief and Loss of Rights , 2015, p. 18
  4. ↑ Lars Rühlicke, Relief and Loss of Rights , 2015, p. 19
  5. ↑ Dietrich Knoche, The so-called 'renunciation effect' of relief in private and public law , 1995, p. 5
  6. ↑ Dietrich Knoche, The so-called 'renunciation effect' of relief in private and public law , 1995, p. 5
  7. ↑ Carl Creifelds , Creifelds Legal Dictionary , 2000, p. 395
  8. ↑ Josef Isensee / Paul Kirchhof (eds.), Handbuch des Staatsrechts der Bundes Republik Deutschland , Volume 5, 2007, p. 1222
  9. ↑ Lars Rühlicke, Relief and Loss of Rights , 2015, p. 8
  10. ↑ WirtschaftsWoche from April 29, 2019, discharge refused, memorandum missed, nothing happened , accessed on April 28, 2019
  11. ^ Friedrich Kübler / Hans-Dieter Assmann, Corporate Law , 6th edition, 2006, p. 285
  12. ↑ BGHZ 79, 291
  13. ^ BGH, judgment of November 25, 2002, Az .: II ZR 133/01
  14. ^ BGH, judgment of February 16, 2009, Az .: II ZR 185/07: Leo Kirch v. Deutsche Bank AG
  15. ^ BGH, judgment of September 21, 2009, Az .: II ZR 174/08
  16. ↑ OLG Cologne NJW-RR 1997, 483
  17. ^ BGH, decision of July 17, 2003, Az .: V ZB 11/03 = BGHZ 156, 19
  18. ↑ Werner Niedenführ / Egbert Kümmen / Nicole Vandenhouten, Comment WEG , 9th edition, 2009, § 28 II marginal no. 210 mwN
  19. ^ BGH, decision of July 17, 2003, Az .: V ZB 11/03
  20. ↑ Juris, on the closing of accounts, annual accounts and discharge
  21. ^ BGH, judgment of October 30, 1958, Az .: II ZR 253/56
  22. ↑ RGZ 89, 396
  23. ↑ BGH, decision of July 17, 2003, Az .: V ZB 11/03 = BGHZ 156, 19 , 26 f.
  24. ↑ OLG Cologne NJW-RR 1997, 483
  25. ^ OGH , judgment of July 3, 1975, Az .: 2 Ob 356/74; OGH, judgment of August 5, 2008, Az .: 6 Ob 28 / 08y