Society under civil law (Austria)

from Wikipedia, the free encyclopedia

Two or more natural persons or companies participate in a company under civil law ( GesnbR or GesbR ) ; it is a partnership . They bring their labor or assets to the common benefit. Practical areas of application are working groups (ARGE) z. B. for handling larger construction projects. In contrast to a corporation ( GmbH , AG ), no share capital is required. No cash has to be raised by the shareholders when the company is founded. For example, it is sufficient for the shareholders to contribute their labor.

founding

For the conclusion of the social contract are no form requirements. However, it is advisable to set up a written contract. Society often comes about through the tacit cooperation of (at least two) shareholders.

liability

The partners are liable

  • personally, that is, with all business and private assets
  • unlimited, that is, without any limit on the amount
  • in solidarity, that is, not proportionately, but each for the whole debt
  • primarily, that is, the creditor can take immediate action against one of the shareholders without first having to sue the company

Management and representation

In case of doubt, all shareholders are entitled to manage and represent the company jointly according to the majority principle (capital shares). However, the articles of association can provide for a different regulation, in particular the appointment of a non-company "administrator".

Business license

The company cannot be an independent holder of a trade license , but each individual partner has to obtain the necessary trade licenses.

Sales are subject to upper limits

The company of a GesnbR may not exceed certain threshold values. If the sales revenues exceed € 700,000 for two financial years, the company is obliged to register in the commercial register as an open company (OG) or as a limited partnership (KG) and to submit accounts in the second financial year . If the turnover in one financial year is over € 1,000,000, the registration and accounting obligation already arises in the following financial year.

However, this does not apply if it is a matter of an association to achieve a single specific project. Then namely there is a lack of permanent activity according to Section 1 (2) UGB . Otherwise, for example, practically every (construction) consortium - which is otherwise regarded as a GesnbR - would have to be entered in the commercial register as an OG or KG.

Distribution of profit and loss

This can be in the social contract are governed basically free. In the absence of such a contractual arrangement, the law provides for a distribution of profits and losses in proportion to the contributions made by the shareholders.

Legal personality and commercial register

In principle, the company does not have a legal personality , but it can exceptionally be granted one by law. It cannot have a common name ( company ) and therefore cannot be entered in the commercial register. All shareholders must therefore appear with their (company) name. The addition of the legal form suffix “Society according to civil law” or “GesnbR” as well as establishment names are permitted. The company cannot sue and be sued, nor can it be entered in the land register.

Reasons for terminating the company

  • Achievement of the company's purpose (e.g. ARGE in the construction industry)
  • Time lapse for a limited partnership agreement
  • Termination of the open-ended company by a shareholder (it makes sense to specify termination dates and periods in the articles of association)
  • Death of a partner: In the absence of any deviating regulation in the articles of association, the member leaves the company upon death; this will be continued by the other shareholders
  • Exclusion of a partner for good cause (for example: bankruptcy , criminal acts, breach of partner duties, such as failure to make contributions or inaction contrary to the contract); Exclusion due to non-payment of additional payments is also possible.
  • Resignation of a partner for an important reason

Taxes

The GesnbR is not considered an independent taxpayer. For the determination of the income tax , the individual partner is the tax subject. The company and the individual shareholders need their own tax numbers . It should be noted that, in contrast to the GmbH, employment relationships or rental and loan relationships between the GesnbR and its shareholders are not recognized for income tax purposes.

social insurance

For all shareholders of a GesnbR there is usually a compulsory insurance in the Commercial Social Insurance Act (GSVG) due to the required trade license.

GesbR Reform Act (GesbR-RG) - adopted changes

The new version of the regulations for civil society (27th main part of the ABGB ) increases legal certainty . The federal law amending the general civil code and the company code (GesbR Reform Act) was announced on November 21, 2014 in Federal Law Gazette I No. 83/2014 .

literature

  • Thomas Ratka, Roman Alexander Rauter, Clemens Völkl: Corporate and Corporate Law Volume 2: Corporate Law. 3rd edition, MANZ Verlag, Vienna 2017, ISBN 978-3214113575 , pp. 89–115.
  • Eveline Artmann, Friedrich Rüffler: Corporate Law . MANZ Verlag, Vienna 2017, ISBN 978-3214020934 , pp. 31-89.
  • Bernhard Rieder, Daniela Huemer: Corporate Law . 4th edition. Facultas, Vienna 2016, ISBN 978-3708912899 , pp. 87–117.

Web links

Individual evidence

  1. ↑ civil law (GesbR) - WKO.at. In: wko.at. Retrieved June 10, 2016 .
  2. ↑ See: VwGH of November 22, 1994, reference number 93/04/0107
  3. ↑ Walter Brugger , No application of § 1184 Paragraph 2 ABGB , requested on July 28, 2016.