Company (corporate law)

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A company in the sense of company law in Germany is an association of persons, usually established for an indefinite period of time, for the common pursuit of a common purpose. It is either a partnership , a corporation or a cooperative . The exception is the one-person company , in which the sole shareholder as a single body forms the entire part of the legal person .

General

This definition largely corresponds to the legal definition of the articles of association of the civil society (BGB-Gesellschaft; § 705 BGB ), which represents the original type of at least all partnerships. There is, however, no generally applicable legal definition of the term “company”, although it occurs frequently in all company law regulations. This term of society does not always coincide with the general usage , because not all companies are companies in the legal sense.

Delimitations

Not every association of persons is a society. Communities such as the fractional community (the parties involved only have one asset in common; Section 741 BGB), connection ( Section 947 BGB), mixing ( Section 948 BGB), marital partnership (does not pursue a specific purpose; Section 1353 (1) sentence 2 ) are not societies BGB), community of property ( § 1411 and § 1485 BGB) and community of heirs (created by law; § 2032 BGB).

The companies do not include foundations (there is no association of persons; § 80 and § 82 BGB), institutions and corporations under public law (arise under public law ).

A company normally consists of at least two shareholders. If the penultimate partner of a (partnership) leaves the company, the company ends and, if necessary, continues in the form of a sole proprietorship . The exception is the one-person company (so-called one-man company) - a stock corporation (AG), European company (SE), company with limited liability (GmbH) or entrepreneurial company (limited liability) (UG (limited liability)), with only one partner who owns all shares or shares -; it is etymologically a contradiction in terms.

purpose

The common purpose can be in the operation of a commercial trade ( business purpose ), in joint practice with freelancers , in joint property management, working groups , car pools or tip communities . This common purpose must be mentioned in the articles of association (under Austrian law, the object of the company must be entered, not the purpose). A partnership agreement that has forbidden or immoral purposes as a goal is null and void ( § 134 and § 138 BGB). The common purpose must be promoted by the shareholders (through capital contributions , joint liability for corporate debts) and support the interests of society. The partners can mutually demand the promotion of the agreed purpose.

Social contract

Every society is created through a social contract. The law of the BGB-Gesellschaft and partnerships is largely optional, so that when drafting a partnership agreement, there is considerable contractual freedom to shape a company. A articles of association must regulate that and how each of the partners has to contribute to the achievement of the common corporate objective (§ 705 BGB). The articles of association do not have to be expressly concluded, as the law does not provide for a special form ( cohabitation ). Exceptions exist for corporations, because notarization ( § 23 AktG, § 2 GmbHG) is required. The minimum content of a partnership agreement is required by law for corporations ( Section 23 (3) AktG, Section 3 (1) GmbHG), so that the constitution of these companies requires a minimum regulation. In the case of a sham company , the articles of association are missing.

species

The civil society (GbR) is the basic model of society. It is founded by companies to fulfill a specific, often time-limited purpose ( consortium , working group ); Freelance professions can join together as a GbR for an unlimited period of time (joint practice), natural persons in the form of a syndicate or car pool. The companies are systematically divided into:

Partnerships are not necessarily legally or partially legally competent . Corporation and cooperative are corporations under private law ; these belong to the legal entities and as such have legal capacity.

The partnerships include:

You must have at least two shareholders.

Corporations are:

Cooperatives are:

The number of members of a registered cooperative must be at least three ( Section 4 GenG). An SCE can be founded by at least five natural persons (Article 2 Paragraph 1 of Regulation (EC) No. 1435/2003 in the consolidated version of August 21, 2003 ).

The German Civil Code (BGB) speaks of joint ownership if the assets of the community are special assets to which the community is entitled "to the whole hand" (ie jointly). This applies to the corporate forms of GbR, OHG and KG ( § 705 BGB as well as § 105 and § 161 HGB ); also for some other associations of persons such as the unincorporated association (to which the regulations on the society apply although it is not a society, § 54 BGB), the community of property (with the common property, § 411 and § 1485 BGB) and the community of heirs ( § 2032 BGB).

International

Only the legal forms prescribed by law can be created, possibly as a mixed form ( GmbH & Co. KG ). However, the European Court of Justice (ECJ) has ruled that a company founded in one EU member state must be recognized in another member state if it moves its registered office there. This makes it possible to establish national company forms in addition to the German and EU-wide introduced supranational company forms ( EWIV , SE and SCE ). For these supranational forms of company, EU regulations contain directly applicable law in Germany.

See also

Individual evidence

  1. ↑ Petra Dulf / Christoph Martin / Thomas Wiegmann, Accounting for Partnerships , 2010, p. 15.
  2. ↑ Julia Preußer, Corporate Law. Examination knowledge, multiple choice tests, laws, judgments , 2007, ISBN 978-3-448-08270-8 , p. 6.
  3. ↑ BGHZ 24, 106
  4. ↑ Werner Nägel: One-man companies in German and European law . 2004, p. 29 ( limited preview in Google Book search).
  5. ↑ Barbara Grünewald, Corporate Law , 2008, p. 5.
  6. ↑ ECJ NJW 2003, 3331
  7. ↑ Julia Preußer, Corporate Law. Exam Knowledge, Multiple Choice Tests, Laws, Judgments , 2007, ISBN 978-3-448-08270-8 , p. 12.