Entrepreneur
An entrepreneur is anyone who, as a natural or legal person , runs a company alone or together with other co- entrepreneurs .
General
In contrast to the manager , the entrepreneur is also an equity provider . In this sense, the word is first attested in writing in the 18th century and is considered a loan translation of the English under-taker under the influence of the older French entre-preneur .
There are a number of attempts to explain the concept of entrepreneur. In addition to economics and business administration , for which the entrepreneur is an essential object of knowledge , other scientific disciplines such as sociology and various laws deal with the concept of the entrepreneur, but define it very differently. This is because a certain law or a scientific discipline depends on a special aspect of the concept of entrepreneur that serves the purpose of the law or the scientific discipline. For example, the BGB considers other characteristics to be important in entrepreneurs than, for example, sales tax or social law. The entrepreneur or company founder is to be distinguished from the entrepreneur, since their entrepreneurial characteristics only play a role when starting a company . After the start-up phase, the entrepreneur becomes an entrepreneur.
Economics
In economics, entrepreneurial performance is understood as a production factor. The three classic production factors land , labor and capital alone are not capable of producing products . A dispositive, combined service must also be added, namely the entrepreneurial service. Jean-Baptiste Say has made it one of the factors of production since 1845 : "The entrepreneur appears as the main agent of production, as the one who classifies the structure that the enterprise represents into the market, the overall economic process". It encompasses the recognition of the chances of intervening in the performance structure of the economy, of carrying out a commercial business plan based on it and of bearing the associated risk of failure. Because of its special work content , entrepreneurial performance is not part of the work factor. It is a creative achievement in the implementation of new combinations of production factors and characterized by the use of risk. Joseph Schumpeter based his economic theory in 1949 on the active, creative, dynamic element of entrepreneurial performance, which produces innovative entrepreneurship. The entrepreneurial performance ensures the appropriate combination of the other production factors and brings with it risk and responsibility towards the employees. Just as the production factor work as a factor income wage achieved the entrepreneurs power generated to management earnings ( profits ).
Business administration
The entrepreneur is described by the entrepreneurial functions he performs. This includes attributes such as independence , authority to issue directives , risk , organizational , management and planning skills . According to this, entrepreneurs are people who manage a company independently and responsibly according to their own business plan and at their own risk. Entrepreneurial activity is always associated with risks (ventures). While Dieter Schneider puts the institutional aspects of entrepreneurship in the foreground, Erich Gutenberg uses a production theory-oriented perspective in particular. Schneider defines as follows: "Anyone who first sets the goals in detail, looks for the means, has to research the options for action in their contributions to the goals and their use of resources, who then decides on a possible course of action and realizes it, we call 'entrepreneurs'" . For Gutenberg, on the other hand, entrepreneurial decisions are the constitutive element of the entrepreneur. Entrepreneurial decision-making areas are the operational functions of procurement , production , sales , financing and personnel policy . Entrepreneurs in the narrower sense are tradespeople , freelancers , farmers and foresters , landlords and people who grant licenses or comparable rights.
Sole proprietorship
An entrepreneur carries out a commercial or professional activity independently. He does not have to share the profit he generates with partners. He alone can decide on private withdrawals. In contrast, he alone bears the loss of the company and the entrepreneurial risk . He alone has to provide the necessary financial means and is solely responsible for his decisions. He is liable for the liabilities of his company with all his assets ( business assets and private assets ).
Co-entrepreneur
Co-entrepreneur is a tax law term that plays a role in particular for Section 15 (1) No. 2 Income Tax Act (EStG). According to this and according to the case law of the BFH , a co-entrepreneur is someone who can develop entrepreneurship together with other people based on a corporate relationship and bears an entrepreneurial risk.
Shareholders
Shareholders in accordance with Section 2 of the Codetermination Act are the shareholders of stock corporations , limited partners of limited partnerships on shares , shareholders of limited liability companies , trades of mining unions with their own legal personality and members of commercial and cooperative societies . Shareholders are only considered entrepreneurs if they have a significant equity stake of over 75% (qualified majority stake), because they can then exert influence on the economic activity of a company. Whether the "entrepreneurs (the board of directors ) and shareholders are different people" in public companies - as Dieter Schneider claims across the board - therefore depends on the level of participation .
Germany
In German law in general there is no uniform definition of the term entrepreneur, but definitions that depend on the respective legal text .
Entrepreneurship in the BGB
general part
The German Civil Code (BGB) offers a legal definition in Section 14 (1) BGB. According to this, an entrepreneur is any natural or legal person or partnership with legal capacity who , when concluding a legal transaction , is exercising their commercial or independent professional activity. This also includes freelancers , craftsmen , farmers and small businesses .
According to Section 14 (1) BGB, an entrepreneur is therefore also someone who works as an architect , tax consultant , translator or dentist , for example , or who performs other services independently . However, the legal transaction must be carried out “in the exercise” of this activity; If the entrepreneur buys a shelf for his apartment or dog food as a private person , he is a consumer .
Entrepreneurship is particularly important when it comes to the purchase of consumer goods and consumer loan contracts, as well as for the protection of the consumer under the general terms and conditions .
Work contract
Another definition of the entrepreneur can be found in the regulation of the contract for work and services in the special part of the law of obligations ( § 631 BGB). In a contract for work and services, the entrepreneur is the party that produces a work that has been contractually agreed with the customer.
These two entrepreneurial terms in the BGB are not congruent.
In legal practice, the terms rather than the terms entrepreneur and buyer often contractor and client is used, particularly in construction law in the VOB / B . In contrast, the term “entrepreneur” is used in building law, especially in the combination of general contractor and subcontractor . The so-called entrepreneurs differentiate according to whether an entrepreneur renders all construction work for a building to the client or whether he is only used by another entrepreneur to provide individual construction work. A general contractor also takes on planning services in addition to the construction work.
Entrepreneurship in the HGB
Standard addressees of the Commercial Code (HGB) are only commercial entrepreneurs, which do not include freelance entrepreneurs and small businesses. It follows that every businessman is also an entrepreneur, but not every entrepreneur is a businessman. The term entrepreneur also includes small businesses up to a certain size and freelancers.
According to Section 84 (1) of the German Commercial Code (HGB), an entrepreneur is someone who has a commercial agent constantly commissioned to mediate business or to conclude it on his behalf.
Entrepreneurship in tax law
Companies in the Federal Republic of Germany must submit their tax returns electronically using ELSTER . The German sales tax law defines entrepreneurs as follows ( Section 2 Paragraph 1 Clause 1 and 3 UStG):
- “Is who” includes natural and legal persons as well as partnerships and non- legal entities such as a community of heirs whose legal capacity has not yet been confirmed. A civil law partnership (GbR) with partial legal capacity is also an entrepreneur if it acts towards third parties.
- "Sustainable" means intent to repeat .
- “Self-employed” is not defined in the UStG, but Section 2 (2) UStG determines the cases of dependent employment.
Entrepreneur term in e-commerce
Commercial activity is a systematic, self-employed and economic activity that is planned for a certain period of time and that emerges externally. Therefore, even individuals who, with a certain minimum organizational effort, are constantly selling goods, for example on Ebay , can also be entrepreneurs. This is particularly to be assumed for so-called power sellers who sell at least 300 items per month on eBay or who run an eBay shop. In general, the buyer has to prove the seller's entrepreneurship. However, if the other is a power seller, the OLG Koblenz is of the opinion that the burden of proof is reversed.
Delimitations
The status of an entrepreneur is different from the status of an employer . An entrepreneur can also be someone who does not employ any employees (e.g. a commercial agent ), an employer can also be someone who is not an entrepreneur (a pensioner employs domestic staff ). Normally, however, the employer is also the company owner and labor law is the company's internal law .
Austria
Entrepreneurship in the UGB / KSchG
In Austria the term entrepreneur has a different meaning. In the course of the reform of commercial law (now: company law), the term “businessman” has been replaced by the term entrepreneur. After the amendment to company law in Austria on January 1, 2007, private law is based only on a common concept of entrepreneur. This can be found in Section 1 of the UGB , which says: “ An entrepreneur is someone who runs a company. “A company, on the other hand, is any long-term organization of independent economic activity, even if it is not directed towards profit. In addition to freelancers such as architects or doctors, this definition also includes charitable organizations, but members of the liberal professions as well as farmers and foresters are generally excluded from the scope of the 1st book of the UGB (Section 4, Paragraphs 2 and 3 of the UGB); they can subscribe to it but voluntarily submit (opt), entry in the commercial register is a prerequisite. The definition of the entrepreneur in the KSchG is almost identical and is seen as identical by jurisprudence and teaching.
Entrepreneurs by virtue of their legal form and their registration are added to this general definition . According to § 2 UGB, entrepreneurs by virtue of their legal form are stock corporations (AG), limited liability companies (GesmbH), trade and business cooperatives , mutual insurance associations, savings banks, EWIV , SE and SCE . Entrepreneurs by virtue of registration, on the other hand, are incorrectly entered in the commercial register according to Section 3 of the Austrian Commercial Code (UGB) and who act under this company. The entrepreneur is not represented in the UGB, but due to the doctrine of legal liability, both doctrine and jurisprudence, the entrepreneur is by virtue of appearance . In business dealings, he is wrongly acting as an entrepreneur and must allow himself to be treated as an entrepreneur in the event of certain legal consequences.
A further distinction is to be made between the term entrepreneur in the UGB and the term entrepreneur in the Value Added Tax Act, which essentially corresponds to the German terminology (see above).
See also
literature
- Wolf Dieter Enkelmann, Birger P. Priddat: Genius and Routine. Contributions to the company's philosophy. Metropolis, Marburg 2020, ISBN 978-3-7316-1424-1 .
- H. Fittkau: The GbR in sales tax law - advantageous arrangements, legal protection, avoidance of risks - with an introduction to the principles of civil law. Berlin 2008, ISBN 978-3-503-10667-7 .
- JP Thommen, AK Achleitner: General business administration. 7th edition. Wiesbaden 2012, ISBN 978-3-8349-3416-1 .
Web links
Individual evidence
- ↑ take. In: Digital dictionary of the German language .
- ^ A b Ulrich Blum, Frank Leibbrand: Entrepreneurship and entrepreneurship . 2001, p. 6 ( limited preview in Google Book search).
- ↑ Guido Turin: The concept of the entrepreneur . 1947, p. 46 .
- ↑ Werner Mahr: Introduction to General Economics . 1966, p. 96 ( limited preview in Google Book search).
- ↑ Erich Gutenberg: The production . 1962, p. 384 ( limited preview in Google Book Search).
- ^ Dieter Schneider: Investment, Financing and Taxation . 1992, p. 3 ( limited preview in Google Book Search).
- ↑ Erich Gutenberg: Fundamentals of business administration . tape 1 , 1965, p. 5 f .
- ↑ BFH, Large Senate of June 25, 1984, BFHE 141, 405, 440.
- ^ Rolf Kramer: The entrepreneur and his profit . 1985, p. 26 ( limited preview in Google Book search).
- ↑ cf. Schneider 1992, p. 132.
- ↑ PAGE 141, 299
- ^ Peter Bülow: Commercial Law . 2009, p. 1 ( limited preview in Google Book search).
- ↑ OLG Koblenz, decision of October 17, 2005 - 5 U 1145/05, (inter alia MMR 2006, 236); vur.nomos.de (PDF)
- ^ Hermann Reichold: Labor law . 2nd Edition. Beck, Munich 2006, ISBN 3-406-53869-X , § 2 Rn. 5.
