Company (corporate law)
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 .
This definition largely corresponds to the legal definition of the articles of association of the civil society (BGB-Gesellschaft; 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.
Not every association of persons is a society. Communities such as the fractional community (the parties involved only have one asset in common; BGB), connection ( BGB), mixing ( BGB), marital partnership (does not pursue a specific purpose; (1) sentence 2 ) are not societies BGB), community of property ( and BGB) and community of heirs (created by law; BGB).
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.
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 ( and 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.
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 ( AktG, GmbHG) is required. The minimum content of a partnership agreement is required by law for corporations ( (3) AktG, (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.
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:
- the civil society (GbR),
- the general partnership (oHG),
- the limited partnership (KG) (including the open investment limited partnership ( open InvestmentKG) ( ff. KAGB ), which in turn includes the open investment limited partnership with sub-company assets (open InvestmentKG m. sub-company assets) ( and Paragraph 2 KAGB), and the closed investment limited partnership (closed InvestmentKG) ( ff. KAGB)),
- the quiet company ,
- the partnership company (partnership) (including the partnership with limited professional liability (Part mbB)),
- the partner shipping company ,
- the silent shipping company and
- the European Economic Interest (EEIG) ( ).
You must have at least two shareholders.
- the Aktiengesellschaft (AG) ( AktG ) (including the REIT-Aktiengesellschaft (REIT-AG) ( REITG ), the investment stock corporation with variable capital (InvestmentAG [m. changeable capital]) ( ff. KAGB ), which in turn includes the investment stock corporation with variable capital with sub-company assets (Investment AG [m. changeable capital] m. sub-company assets) ( and (1) sentence 2 and paragraph 2 KAGB), and the investment stock corporation with fixed capital (InvestmentAG) ( ff . KAGB)),
- the European Company (SE) ( ) and
- the limited liability company (GmbH) ( GmbHG ) (including the gGmbH , which exclusively and directly pursues tax-privileged purposes according to §§ 51 to 68 of the tax code ( sentence 2 GmbHG in conjunction with - AO ) and the entrepreneurial company (limited liability) ( GmbHG)) for which one partner is sufficient ( (1) GmbHG, (2) AktG) and
- the partnership limited by shares (KGaA), which requires at least 2 shareholders.
- the registered cooperative (e. G.) ( Genossenschaftsgesetz (GenG)) and
- the European Cooperative Society (SCE) ( ).
The number of members of a registered cooperative must be at least three (GenG). An SCE can be founded by at least five natural persons (Article 2 Paragraph 1 of ).
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 ( BGB as well as and 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, BGB), the community of property (with the common property, and BGB) and the community of heirs ( BGB).
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.
- Petra Dulf / Christoph Martin / Thomas Wiegmann, Accounting for Partnerships , 2010, p. 15.
- Julia Preußer, Corporate Law. Examination knowledge, multiple choice tests, laws, judgments , 2007, ISBN 978-3-448-08270-8 , p. 6.
- BGHZ 24, 106
- Werner Nägel: One-man companies in German and European law . 2004, p. 29 ( limited preview in Google Book search).
- Barbara Grünewald, Corporate Law , 2008, p. 5.
- ECJ NJW 2003, 3331
- Julia Preußer, Corporate Law. Exam Knowledge, Multiple Choice Tests, Laws, Judgments , 2007, ISBN 978-3-448-08270-8 , p. 12.