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A partner is a natural person or legal entity under private or public law who participates as a member in the establishment of a company or who later joins an existing company by means of a partnership agreement or by law .


The legal term partner is not defined in laws , but assumed to be generally known. In Section 705 of the German Civil Code ( BGB ), Paragraph 1, shareholders are the acting natural persons . Section 2 (1) sentence 2 GmbHG requires that the notarized articles of association must be signed by all shareholders. Shareholder within the meaning of Section 16 (3) GmbHG is the respective owner of a share on which a contribution is to be made according to Section 14 (1) GmbHG . A shareholder is anyone who has a stake in his company . In § 2 Co-Determination Act a differentiating legal definition is included, which among shareholders , the shareholders of joint stock companies , limited partners of limited partnerships , shareholders of limited liability companies , trades of mining law unions with legal personality and comrades of employment and cooperatives are understood. From § 54 AktG it follows in connection with the heading of the third part that the shareholders of the AG are its partners, whereby an AG can also be a partner of another AG.

Types of shareholders

In addition to natural persons, legal persons can also be considered as shareholders. For example, a GmbH (legal entity under private law) can assume a shareholder function as a general partner in a KG, which creates the classic hybrid form of a GmbH & Co. KG . In addition, it is very common for regional authorities ( legal entities under public law ) such as municipalities to participate as shareholders in public companies with a private legal form . As a result, they become entrepreneurs as shareholders and are then subject to private law in this function.

Social contract, rights and obligations

The shareholders are obliged to draw up a partnership agreement, which therefore forms the formal basis of the company. Through the articles of association, the founders become shareholders of the company founded. The articles of association regulate the relationship between the partners, the conduct of business and the representation of the company externally, the participation in profit and loss, the departure of partners, the admission of new partners and the dissolution of the company. With his partner function, the partner assumes rights and obligations. They result from the law ( HGB , GmbH law , AktG , GenG , PartGG , BGB ) and from the articles of association. The GmbHG in particular goes into great detail on rights and obligations; these standards can largely be applied analogously to other legal forms. The rights and obligations of the shareholder are codified in the AktG and have been refined by case law . By virtue of law, a partner becomes a person who takes over the partner position of a deceased partner through inheritance .

Partner in a partnership

Partners in a OHG, KG ( limited partner , general partner ), BGB-Gesellschaft bear entrepreneurial risk and participate in the company's assets, profits and losses ( co-entrepreneurship ). With the exception of the limited partner, the partners of partnerships have unlimited (and jointly and severally ) liability for corporate debts with their private assets , so that ultimately the balance sheet equity does not matter.

Shareholder in a corporation

Associate within the meaning of § 16 para. 3 GmbHG is the owner of a business component ( shareholders ) on which according to § 14 set 1 GmbHG an insert is to be made. According to § 2 MitBestG, a shareholder is understood to mean a shareholder in a stock corporation , a limited partner in a partnership limited by shares , the partner in a company with limited liability . If the shareholders of a corporation unilaterally pursue their interests vis-à-vis the company directly to the detriment of the company's creditors, liability - beyond their capital contribution - from intentional immoral damage according to Section 826 of the German Civil Code (BGB) may be considered.

Quiet partner

See also

Individual evidence

  1. Hans Brinckmann, The decisive law , 1970, p. 135.
  2. BGH, judgment of November 30, 1978, Az. II ZR 204/76, full text = NJW 1979, 2104, 2105.