Sole proprietorship

This article deals with the general term one-person company . For the European legal form of the same name, see one-person company (European Union) .

The one-person company (or one-man company ; English single member company ) is a company in the legal form of a corporation , which consists of only one partner .

General

In German company law , the one-person company is an exception, because the establishment of a company usually requires the cooperation of several people . A society is defined as an association of persons , so that conceptually at least two people must already exist. Company law even threatens legal consequences if the number of shareholders falls below a certain minimum. If the number of members in the registered association falls to less than three people, the local court must deprive him of his legal capacity in accordance with Section 73 BGB , so that he is no longer a legal subject . This also applies to the cooperative in accordance with Section 80 (1) GenG if the number of members is less than three. Since partnerships cannot survive as one-partner companies, the purchaser of all shares in a partnership becomes a sole trader .

history

As early as 1957, circumvention transactions or the desire to limit liability were seen as motives for founding one-person companies . Due to the emergence of single-member company is the ambition of the entrepreneur , the personal liability to be avoided. The specialist literature distinguishes 12 case types for the establishment of straw men alone . The Reichsgericht (RG) recognized the one-man GmbH as a straw man foundation in March 1908.

The GmbH law from May 1892 was initially based on at least two founders, until the government draft of December 1977 recognized an economic need for one-man companies. The establishment of one-person companies has been regulated throughout Europe since December 1989 by Directive 89/667 / EEC (“one-person GmbH Directive”), which was replaced in December 2009 by Directive 2009/102 / EC. In this, the legal term “one-person company” already existing in Art. 2 Para. 1 Directive 2009/102 / EC has been converted into a uniform terminology applicable in all EU member states .

Legal issues

In Germany, the monocorporative one-person company is permitted for the GmbH and the AG . In the single-member lying shares fully in the hands of a single shareholder, who is also the sole shareholder is called. According to § 1 GmbH Law, the GmbH can also be set up by one person. According to Section 2 (1a) of the GmbH Act, a simplified formation procedure is permissible for them if they have a maximum of three shareholders and one managing director . According to Section 6 (1) of the GmbH Act, a managing director is sufficient, who is also allowed to be a partner according to Section 6 (3) of the GmbH Act. Therefore the sole shareholder can act as the sole managing director. The one-man partner has a quorum at any time . The GmbH & Co. KG is also a one-man company if the KG owns all of the shares in the GmbH (so-called unit company ).

In § 2 AktG stipulates that a person all in a stock corporation (AG) shares may take alone. In fact, an AG is already a one-man company if a shareholder has a majority of over 75% of the share capital because he can pass or block any resolution at the general meeting . The entrepreneurial company can also be a one-person company .

The organs of one-person companies ( board and general meeting with the AG, management and general meeting of the GmbH) is, if they only with a natural person as incumbents are occupied to individual organs . The sole shareholder exercises the powers of the shareholder or general meeting alone and / or is the only member of the board . Monocratic individual organs lack the dual control principle , which is important in company law, and the principle of democracy .

Economical meaning

The one-person company can arise when a company is founded or, in the case of multi-person companies, by resigning the partners until only one remains. Around 40% of all German corporations are likely to be one-man companies, with an equally high proportion of GmbHs. In 2012, only 29% of all existing AGs in Austria were single-member companies.

The one-person company is legally different from the sole trader. According to the principle of separation, there is a clear separation between the company and the partner in the one-man company, who, unlike the sole trader, are not liable for company debts with their private assets . This limitation of liability and the individual organs make the one-person company susceptible to abuse simply because of the lack of the four-eyes principle. A misuse exists within the framework of German group liability "if the company cannot meet its obligations as a result of the effects exercised in the interests of the group ".

International

In Austria, the one-person GmbH (Section 3 GmbH Act) and the one-person AG (Section 35 AktG ) have been permitted since 1996 . In Switzerland , Art. 775 OR provides that a GmbH can be founded by one or more natural or legal persons or other trading companies.

Directive 89/667 / EEC already allows legal forms comparable to German GmbHs to be run as one-person companies in all EU member states. The name Societas Unius Personae (SUP) was introduced across Europe for the one-person company ; it is a harmonized one-person company with limited liability. In France this is the SARL ( French Société à responsibilité limitée ), in Spain the SRL ( Spanish Sociedad de responsibilidad limitada ), in Italy the Srl ( Italian Società à responsabilità limitata ) or in the Netherlands the BV ( Dutch Besloten vennootschap met beperkte aansprakelijkheid ).

Demarcation

The term one-person company is intended to make it clear that, under company law, only one person is involved. The word “ partnership” must therefore not be misunderstood to mean that it is a non-corporation made up of at least two natural and / or legal persons ; the one-man company is a corporation . In addition, it is to be distinguished from the shareholder-less corporation like the Kein-Mann-GmbH , whose shares belong to the GmbH itself.

See also

• One-person company (EPU), in Austria a company without employees
• Entreprise unipersonnelle à responsabilité limitée (EURL),
• Societas Unius Personae (SUP)

Individual evidence

1. ^ Friedrich Kübler / Heinz-Dieter Assmann, Corporate Law , 2006, p. 360
2. ↑ BGHZ 113, 132, 133
3. ↑ Herbert Schönle, Die Einmann- und Strohmanngesellschaft , 1957, p. 25 ff.
4. ↑ Silvio Caflisch, The meaning and the limits of the legal independence of the dependent company in the law of the stock corporation , 1961, p. 41
5. ↑ Ottmar Kuhn, Strohmanngründung in corporations , 1964, p. 21 ff.
6. ↑ Thomas Raiser, The Company as Organization , 1969, p. 47
7. ^ RG, judgment of March 20, 1908, Az .: Rep. II. 586/07 = RGZ 68, 172
8. ↑ BT-Drucksache 8/1347 of December 15, 1977, draft of a law amending the law on limited liability companies and other commercial law regulations , p. 28
9. ↑ BGHZ 12, 339
10. ^ OLG Cologne , BB 1993, 1388
11. ↑ Udo Kornblum / Thorsten Hampf / Nicole Naß, GmbHR 2000, 1240, 1245
12. ↑ Die Presse of April 3, 2013, The number of public companies also fell in 2012
13. ^ BGH, judgment of March 29, 1993, Az .: II ZR 265/91
14. ↑ Werner Nägel, One-Man Companies in German and European Corporate Law , 2004, p. 123
15. ↑ One-person company (EPU) in Austria ( Memento of the original from September 1, 2016 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , Austrian Chamber of Commerce, accessed on August 31, 2016. 

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