The single organ is the right to organize an organ within a legal person or association of persons , consisting only of a natural person is. The opposite is the collegial body consisting of at least two administrators .
The isolated exercise of the organ function by a single person represents the ideal case of a monocratic system. Where the individual organs predominate in a state organization, one speaks of a monocratic or bureaucratic system. In the case of an individual body, a single administrator is only active as a representative in the context of his or her body duties. There are three levels to be distinguished: organ support-organ-organ administrator. The controlling company is a legal person or an association of persons. The body can in particular be the board of directors , management , supervisory board , administrative board , shareholders' meeting or general meeting , works and staff council or administrative advisory board . The organ administrators who work for this assume rights and obligations towards the organizer. Actions of the body are direct actions of the legal person, but not a case of legal representation .
Monocratic individual organs are generally rare because they do not comply with the four-eyes principle . In professional engagements of single organ Walters ( vacation , illness ) must have a specially designated deputy the tasks perceive. In public administration and in politics and science there are more individual bodies, especially in public authorities ( head of department , president ) and in the school system or universities ( school director , rector , dean ). In the judiciary, the single judge is a single body. Individual political organs are, for example, the monarch , dictator , head of state , president , minister , mayor . In the private law area, on the other hand, individual bodies only exist in one-person companies and smaller associations . The shareholders' meeting or the general meeting can be a single body if the company only consists of a sole shareholder .
Individual organs contradict both the democratic principle and the collegial principle , because organ-related decisions only require the will of the single organ member. The individual body therefore does not require any quorum regulations like the collegiate body. The decisions of individual bodies in democratic social formations are therefore monitored by functioning control bodies ( parliament , judiciary ). In addition, the powers of some individual organs, such as those of state presidents and heads of state or in constitutional monarchies (Queen Elizabeth II ), are severely restricted to representative functions or, as in the case of ministers, are limited by the authority to issue guidelines .
Executive liability in Germany
According BGB , the association is liable for the damage that a member of the Board or any other constitutionally called to be representatives of an offense committed in execution of the rightful chores, for damages injures a third mandatory action. This provision does not only apply to associations, but to all legal persons and legal persons under public law ( (1) BGB).
The tortious external liability of the organ administrators results from the law of the unlawful act . You are personally and subsidiary liable to outside third parties in the event of intentional immoral damage according to BGB, if the controlling company (the company) fails as a liability debtor - e.g. due to insolvency . However, board member liability is excluded if there is no breach of duty ( (1) sentence 2 AktG). This is the case if, when making a business decision, the board member could reasonably assume that he was acting on the basis of appropriate information for the benefit of the company. However, as soon as an administrator directly damages a third party through active action and fulfills the requirements of (1) of the German Civil Code (BGB), a personal liability arises.
The official liability (liability of the regional authorities ) is the financial liability of the state for damages that an organ administrator in the jurisdiction or the sovereign administration has unlawfully and culpably inflicted on an outside legal entity . This liability initially applies to the civil servant himself ( (1) BGB), but according to sentence 1 GG, the state takes over the civil servant with discharging effect and is solely liable in external relations.
In criminal law, organ liability deals with the question of whether criminal offenses in the company represented can also be attributed to the organ administrator . The perpetrator then has to act as an organ. According to (1) of the Criminal Code, criminal liability is shifted from the company to its administrator. Section 14, Paragraph 1, No. 1 of the Criminal Code, which deals with corporate liability under criminal law , also assumes that every member of the management remains the addressee of the company's duties.
At the global level, the High Commissioner for Refugees is a single body of the United Nations . In all monarchies , the queen or king (empress or emperor ) forms a single organ. Presidents and heads of state around the world are mostly given a purely representative function, for example the Federal President in Germany and the Federal President in Austria . In Switzerland, on the other hand, the Federal President is a single body, but not a head of state . The Federal Constitution of the Swiss Confederation has neither a head of state nor a head of government , because these functions are performed by the entire Federal Council as a college . In terms of constitutional law, the Federal President appears as President of the Federal Council and therefore only as primus inter pares . The French President and the President of the United States also have a high level of political power that is subject to parliamentary control. Dictators, on the other hand, are endowed with far-reaching government and political power without these being effectively controlled by parliaments.
In Austria , authorities are usually managed monocratically, for example by district authorities , by the governor , by regional police departments or by the Federal Office for Immigration and Asylum (in contrast to collegial authorities such as the federal government ).
- Franz Deuticke, Vienna State and Legal Studies , Volumes 20-26, 1931, p. 78
- Adolf Julius Merkl , General Administrative Law , 1927, pp. 325 ff.
- Georg Jellinek , System of Subjective Public Rights , 1905, p. 30
- Jürgen Ellenberger , in: Otto Palandt , Commentary BGB , 73rd edition, 2014, § 31 Rn. 3
- Stefan Martin Schmitt, D&O insurance and D&O insurance , 2007, p. 20
- Stefan Martin Schmitt, D&O insurance and D&O insurance, 2007, p. 23
- Richard Karl / Bernhard Schmidt / Adolf Grabowsky, Zeitschrift für Politik , Volume 14, 1925, p. 295