registration
Entry is a legal term that describes the official note of legal and factual changes in public registers such as the land register , commercial , cooperative , property law , partnership and association registers .
General
Certain legal transactions are subject to a special disclosure requirement that must be met by entering them in a public register. With these registers it is important to the state that certain facts and legal relationships are made public, insofar as they are of essential importance for legal transactions and of general interest. This is done by presenting these legal relationships and facts in a form that is typical for the respective register. It is therefore the task of the register to reproduce the facts to be entered reliably, completely and without gaps.
These registers are managed as a department of local courts (“ registry court ”) and are organized in such a way that circumstances relevant to the entry can be noted in the register by authorized persons at any time. Laws stipulate exactly how the registers are to be kept and which legal changes can be entered. Specifically, this is stipulated for the land register in the land register order and the land register order , for the commercial register in the HGB and the commercial register ordinance , for the cooperative register in the cooperative register ordinance, for the property law register the property law register ordinance , for the partnership register in the PartnerschaftsGG and the partnership register ordinance and for the association register in the association register ordinance. The most complex regulations deal with entries in the land register . The respective ordinances form formal law, which states how the substantive law ( Civil Code , BGB or Commercial Code , HGB) is to be implemented specifically in the register.
Registration requirement
Only facts and legal relationships which are determined and permitted for entry by law or whose entry fulfills the purpose of keeping the register can be entered into the register. The HGB understands facts not only to be facts in the narrower sense, but also legal circumstances. Only in the commercial register is a distinction made between facts that are subject to registration and those that can be registered. In contrast to the entry in the land register, the entry of facts that are subject to mandatory registration can be enforced with fines ( § 14 HGB) (compulsory registration). This distinction is also important in the context of the publicity rules of Section 15 HGB, because only the publicity effects of Section 15 Paragraph 2 apply to facts that can only be registered ( Section 3 , Section 25 Paragraph 2, Section 28 Paragraph 2, Section 36 HGB) . 2 HGB. In particular, information on property or marital status or the legal capacity of shareholders are not registrable in the commercial register. It is also inadmissible to enter facts that are only to become effective at a future point in time. Not also be registrable, the power of attorney , although it is one of the most common representation provisions. In order to keep the register up-to-date, there is an obligation to register for the legally standardized facts that are subject to mandatory registration. The law provides for certain companies (merchants, commercial partnerships) to be entered in the commercial register. The information about the representation relationships that is required to be registered also includes the authorization of self-dealing .
In the case of land registers, there are only registrable and non-registrable rights. The latter include public charges ( Section 54 GBO ) and construction charges . Only those entries may be made that are prescribed by a legal norm or that are expressly or tacitly permitted - for example because the substantive law links the entry with a legal effect. In the land register, it even depends on the exact order of entry, because the rank of each individual right in the foreclosure sale of a property depends on it ( Section 11 ZVG ). The other registers are intended for very special legal relationships, so that only the relevant facts can be entered. In terms of content, an entry in the land register is only inadmissible if a right with the content or in the form as it is entered cannot exist for legal reasons.
Procedure
The reason for registration, the registration requirement and the registration procedure are not regulated uniformly, but rather depend on the type of register. In order to effect an entry in the relevant register, an application for entry is required in any case ( application principle ), and in the case of the land register also an approval by the person concerned ( Section 19 GBO). In most registers, applications for entry are only possible in electronic form (exception: register of associations and property law, land register). In the § 12 HGB, § 157 GenG and § 5 PartGG stipulates that all applications and other documents to be submitted electronically in a notary certified must be submitted form. This requires prior public certification by a notary. The registration application is then checked by the competent registry court to ensure that it is correct in terms of content and form. The competence, the proper certification and the registrability of the fact are formally checked. The verification of the material correctness of the fact to be entered and an official investigation according to § 26 FamFG only take place if there are justified doubts about the correctness of the fact to be entered despite proper registration. In these cases, the registry judge has to suspend or even reject the entry ( e.g. Section 9c (2 ) GmbHG ).
If the applications can be registered, they will be dismissed for registration. The original registration documents are kept or stored virtually in register files (special volumes) as evidence of the entry. Ex officio registrations are the exception ( foreclosure notice in the land register). Incorrect or non-registrable applications must be rejected by the registry court.
Notices
The entries to be published and deletions in the commercial, partnership and, if applicable, cooperative register are made known electronically in order to create the intended publicity. In the commercial register, this is done according to § 10 HGB in the chronological order of the entries according to days. The notification of entry in the land register is sent to those involved and regularly to the property owner in accordance with Section 55 GBO.
In addition to the entry in the register itself, an announcement in the Federal Gazette is also planned. This formal publicity allows the law to assume that a fact has been made known if certain disclosure requirements are followed. In fact, hardly anyone reads the Federal Gazette; there is therefore a de facto “pseudo publicity”.
Effect of entries
The legal effect of the entries is also different. A distinction must be made between a constitutive and declaratory effect of an entry in the register. The law chooses constitutive registration if it does not want the desired legal result to occur without the state's participation by the register , and declaratory registration if it is only important to make the legal consequences that have already occurred visible to third parties through registration.
Constitutive effect
In the case of entries with a constitutive effect, the law stipulates that only the entry in the register has the legal effect envisaged with the application for entry. Only the entry in the register leads to a change in the legal situation. The constitutional effect of the entry in the commercial register is created by the formation of companies, articles of association and amendments to the articles of association or mergers. The entries according to § 2 HGB (commercial trade of a commercial company), § 3 para. 2 HGB (agricultural or forestry company) and § 123 HGB (OHG) as well as § 11 para. 1 GmbHG (establishment of a GmbH) and § 41 para. 1 AktG (establishment of an AG). While the commercial register recognizes both constitutive and declaratory entries, the entries in the land register are exclusively of a constitutive nature; Changes in the law can only be brought about by real agreement and registration ( Section 873 (1) BGB). Even the real estate purchase contract that is subject to notarization has no legal effect without an entry in the land register. Became its certification form is not adhered to, this is the form of lack but by abandonment and entry healed ( § 311b para. 1 sentence 2 BGB). In this case, the law attaches such great importance to registration that even a form defect that would lead to nullity can be cured by it. Associations only acquire their legal capacity when they are entered in the association register ( § 21 BGB).
Declaratory effect
The declaratory entries reflect an already existing legal situation. For example, a change in the managing director of a GmbH already takes effect through the shareholders' resolution; the later entry merely makes the process public. In the case of declaratory entries, the change in the law is therefore already triggered by the process contained in the entry application, the entry as such should only make this public and thus has legal effect. The declaratory effects in the commercial register are the entries about new board members , their power of representation, the termination of the board office and entries of the power of attorney and their expiry. The entry in the commercial register of a branch of a foreign company does not have a constitutive effect, but only has a declaratory meaning - referring to the establishment process abroad. Entries in the property law register are only made for reasons of publicity, as the marriage contracts that are subject to notarization are already legally effective after the notarial certification (cf. § 1410 BGB).
Public belief
If publicity is already to be created through the register, the question arises for those interested in the entries made there whether and to what extent these entries correspond to the facts. Road safety dictates that the legal relationships and facts entered in the registers are considered to be (refutable) correct. The public belief of the land register regulated in § 892 BGB is most pronounced . Here, however, it is not only the person who has insight that is protected, but only the person who acquires a right to a property through a legal transaction. He can assume that the content of the land register is correct. For this purpose, the law first establishes a rebuttable presumption in the land register, according to which registered rights exist and deleted ones do not exist ( § 891 BGB). In favor of the acquirer of a right, it is then irrefutably faked that all entries in the land register are considered correct, unless an objection has been entered or the acquirer is aware of the incorrectness.
The negative (trust-protecting) and positive (trust-destroying) publicity of the commercial register ( Section 15 (1) and (2) HGB) is designed to be weaker and at the same time more complicated . “Positive publicity” ties in with what is in the register. In the event of positive publicity, legal transactions can rely on facts actually in a register ( Section 15 (3) HGB). If a fact has been entered and made known, the merchant may refer to it after 15 days. Legal transactions can also rely on the fact that unregistered facts do not exist ("negative publicity"), unless they are known. For this reason, a businessman cannot, for example, invoke the expiry of a power of attorney vis-à-vis a business partner if the respective circumstance has not been entered and made known in the commercial register. The negative publicity is linked to what is not in the register. It protects third parties in their belief that facts that are not entered in the register and not disclosed do not exist either. The registers of cooperatives, associations and property law also enjoy this negative publicity. In the property law register, every third party cannot rely on the correctness of a registered fact, but on the continued existence of the registered legal situation ( § 1412 BGB, negative publicity).
Appeal in the registration process
Before registration, the registration courts are obliged to check the formal and substantive justification of an application for registration and to reject applications that cannot be registered. The legal remedy against these decisions and the entries made in registers is not possible through the ordinary judicial process, since these are decisions of the register court within the framework of voluntary jurisdiction ; Only a complaint against this is possible in accordance with § 58 FamFG, insofar as it is permissible under the law, in particular against decisions that refuse entry. Entries made by the registry court cannot be contested ( Section 383 (3) FamFG). The Higher Regional Court is responsible for the complaint ( Section 119 (1) No. 1 (b ) GVG ). Under the conditions of Section 70 FamFG, there is an appeal on points of law to the Federal Court of Justice against its decision . There is a complaint against decisions of the land registry according to § 71 GBO. In accordance with Section 71 (2) sentence 2 GBO in conjunction with Section 53 (1) sentence 1 GBO, a complaint can be made against an entry in the land register with the aim of registering an official objection; Another admissibility requirement is the right to lodge a complaint. In cases of limited complaints aimed at the entry of an official contradiction, only those who, according to Section 894 of the German Civil Code, have a right to correction of the land register if the attacked entry were incorrect, are entitled to contest . The Higher Regional Court ( § 72 GBO) is responsible for the decision on the land register complaint . Under the conditions of Section 78 GBO, there is also an appeal on points of law to the Federal Court of Justice.
The registry judge acts in the exercise of a public office. A breach of official duty by the registry judge does not lead to state liability under Article 34 of the Basic Law in conjunction with Section 839 (2) BGB, because judges at registry courts are not arbitration judges and therefore they do not benefit from the so-called arbitration privilege of Section 839 (2) BGB. Therefore, registry judges are generally considered to be particularly cautious. The state liability takes place here according to Article 34 GG, § 839 Abs. 1 BGB.
Deletion of entries
Legal relationships in registers that are no longer valid are usually notified to the register by an application for deletion. Ex officio deletions are only carried out in exceptional cases (e.g. Section 31 Paragraph 2 Clause 2, Section 32 HGB) However, the deletion does not take place by removing the entry concerned, but by underlining the passages to be deleted in red. This is intended to ensure that interested third parties also become aware of rights and facts that no longer exist when they inspect a register. In legal dealings, one can (rebuttably) trust that deleted rights no longer exist ( Section 891 BGB).
See also
Web links
Individual evidence
- ↑ BGHZ 87, 59 ff., 63.
- ↑ Hans Josef Wieling, Property Law , 2007, p. 268 f.
- ↑ BGHZ 116, 392, 399 f.
- ↑ BayObLG Rpfleger 1986, 371; Johann Demharter, Commentary GBO, § 53 Rn. 42
- ↑ Haimo Schack, BGB General Part , 2008, p. 29.
- ↑ OLG Düsseldorf , Rechtspfleger, 1999, 101.
- ↑ Kurt Schellhammer, Family Law According to Entitlement Bases , 2006, p. 78.
- ↑ OLG Frankfurt OLGR 2006, 376.
- ↑ BGH NJW 1959, 1085.
