General Power of Attorney
Under a general power of attorney ( English general power of attorney , French procuration générale pour l'assemblée , Swedish Generalfullmakt ) is understood in the economy , the issue of power of attorney for all transactions in which a substitution is allowed.
The general power of attorney , developed especially for large companies and in the credit system at large banks , extends beyond the scope of the power of attorney , but is below the competencies of the board of directors or management . This power of attorney is of the Commercial Law regulated General for action power of attorney to distinguish. The latter is a comprehensive type of power of attorney in accordance with para. 1 HGB that are not on the immediate representation of the company, but only to acts in (sub) authorization of the manager is directed. The admissibility of the general power of attorney, which is not regulated by law, is generally recognized in the area of civil law . General power of attorney and general power of attorney require special trust on the part of the principal in the person of the authorized representative, because the latter can also abuse his power of representation .
The general power of attorney is a legal term that occurs, for example, in (3) No. 2 BetrVG for executive employees . You can refer to an entire company extend and is based on the representation in accordance with BGB , so that the legal restrictions of commercial powers of attorney ( power of attorney , power of attorney ) account and they have the power of attorney in its scope to even private companies can go. According to this, a third party may not be a representative of a personal trading company, but this principle does not exclude the possibility of a third party being given a comprehensive power of attorney (general power of attorney) that goes beyond the scope of a power of attorney stipulated by law. The granting of such a power of attorney is just as impossible for the personal trading company as a natural person or a legal person . The general representative has powers that go beyond the power of attorney without being allowed to exercise the powers reserved for the representative bodies (board of directors, management). This is considered to be an inadmissible transfer of authority to a managing director.
The Federal Court of Justice (BGH) considers the authority of the managing director of a GmbH to make a declaration of intent and the associated responsibility to be non-transferable . As a result, the managing director cannot let someone else exercise his power of representation as a whole. In the case of the GmbH, the general power of attorney granted by the managing director to a non-managing director is ineffective even if all shareholders have given their consent. A general power of attorney cannot be granted without restrictions because self-incapacitation of the merchant is immoral ( (1) BGB).
Since the general power of attorney is unknown to the HGB, it cannot be entered in the commercial register ; it is only possible to register as an authorized signatory. An authorized signatory, on the other hand, is not allowed to appoint a general representative. The BGH again rejected the general power of attorney for the GmbH in July 2002.
General power of attorney for private individuals
For private individuals with no legal knowledge , it is advisable to have the general power of attorney certified by a notary so that he can answer all legal questions and exclude any legal risks . The principal must be legally competent at the time the power of attorney is granted . The general power of attorney can be issued as a transmortal power of attorney . On the other hand, the general power of attorney is excluded if highly personal action is required. This includes consent to medical treatment ( BGB), marriage ( BGB), the will ( BGB), the inheritance contract ( BGB) or deprivation of liberty . A general power of attorney can, for example, be issued as a precautionary measure to prevent legal support if legal incapacity occurs as a result of illness or accident . If the general power of attorney is to extend to the sale or encumbrance of real estate , a notarial certification is mandatory as proof to the land registry .
Well-known general representatives in Germany
Berthold Beitz is evidently the first German general representative of the industry when he heard from Alfred Krupp in September 1952 by handshake : “You are being given general power of attorney. You can act like an owner and do what you want. "
- Berthold Beitz , long-time general representative of the Krupp-Werke ;
- Hartmuth Wiesemann, long-time general representative of Aldi- Nord;
- Arafat Abou-Chaker , general manager for the total assets of the rap musician Bushido ;
- Ronald Pofalla , General Representative of Deutsche Bahn .
In Switzerland , the general representative is authorized to conclude legal and / or economic transactions of any kind as a representative in accordance with Art. 32 OR . However, even a general power of attorney is limited. The restriction can result from the circumstances or from the law. This applies, for example, to Article 396 (3) of the Swiss Code of Obligations, which stipulates a special authorization for certain orders.
With regard to the scope of authority in English law between Plenipotentiary different ( English general agents ) and Spezialbevollmachtigten ( English special agents ), the "general agent" may not make as representative of all transactions without restriction.
- Gregor Seikel, Scope, Limits and Evidence of Power of Representation for Private and Public Legal Entities in Austria , 1998, p. 218
- Norbert Horn (eds.), Ernst Heymann / Volker Emmerich, Commercial Code (without Maritime Law): Commentary , Volume 1, 1995, p. 449
- BGH, judgment of May 8, 1978, Az .: II ZR 209/76
- BGHZ 36, 292 , 295
- BGHZ 33, 105 , 108
- BGH NJW 1977, 199 , 200
- BGHZ 44, 158 , 161
- Reimar Spitzbarth, The legal position of the general representative , in: BB 1962, p. 852
- BGH WM 2003, 747
- Otto Palandt / Jürgen Ellenberger , BGB Commentary , 73rd edition, 2014, § 167, Rn. 7th
- Detlev Joost, in: Hermann Staub (Hrsg.), Großkommentar HGB , Volume 2, 2008, p. 70
- Joachim Käppner, Berthold Beitz - The Biography , 2010, oS
- Business relationship: Partner is said to have given Bushido general power of attorney Der Spiegel , June 20, 2013
- Flying change: Pofalla retains a Bundestag mandate until he gets a job at Der Spiegel , June 18, 2014
- Beate Breitlauch, Fritz Sauckel - General Representative for Labor Deployment , in: Ronald Smelser / Rainer Zitelmann (eds.), Die brown Elite I, 1994, p. 236 ff.
- BGE 99 II 39, p. 41
- OGH RZ 1984, 130 (GmbH)
- Hans Berger, The Statute of Power of Attorney in Swiss PIL with comparative consideration of Germany, France, Great Britain, as well as the international treaties and draft treaties , 1974, p. 45