Corporate Law (Germany)
The history of company law begins in the 12th century, when trade experienced significant growth and at least in the cities an independent right of merchants developed. The high medieval commercial and company law was influenced by the prohibition of interest proclaimed by canon law (charging of interest was a priori usury ). For this reason, solutions were sought in corporate law to counter this or to come to terms with the requirements. Genoa is considered to be the nucleus of the maritime trade-oriented Kommenda , the forerunner of the limited partnership . Profit distribution took place in the form of a participation under company law, since interest was ultimately not allowed to be earned. This type of asset growth was tolerated by the church because the partner was on the other hand liable with the contribution for company debts. Later, the open trading companies and types of companies developed, the legal structure of which has not yet been finally clarified (such as the large Ravensburger trading company, which existed from 1380 to 1530 ). Corporations emerged very late, at the beginning of the 19th century ( joint stock companies ). Brandenburg-Prussian and Austrian companies that already existed in the Old Reich and traded with the colonial countries were organized along the lines of the two international forerunners, the British East India and the Dutch East India Companies .
Regulations were codified for the first time on company law in the Prussian General Law included from 1794. It contained provisions on assets even societas (the predecessor of the GbR ), the moral persons and for OHG and silent partnership . The world's first legal formation of the stock corporation (société anonyme) goes back to the French code de commerce of 1807. In Germany company law found its first all-German regulation in the General German Commercial Code (ADHGB) of 1861; for the stock corporation this still contained a system of concessions, which, however, was lifted again in 1870. German legislation broke new legal ground in 1892 when the internationally unknown form of the GmbH came into being in the GmbH Act of 1892. The system of German company law in its current form goes back to the BGB of 1896 (in force since 1900) and the Commercial Code (HGB) of 1897. In 1937, the law of stock corporations was spun off from this. Since the last third of the 20th century there have been important developments, particularly in company law in the European Union .
Basic legal sources of corporate law are:
- for stock corporations : AktG
- for cooperatives : GenG
- for civil society : BGB
- for companies with limited liability : GmbHG
- for partnership companies : PartGG
- for commercial partnerships ( OHG & KG ): HGB
- for associations : BGB
In addition, Basic Law (GG) are of particular relevance from a constitutional point of view .and
According to company exists under three conditions:BGB, a
- Association of several people by contract,
- the merger serves a permitted purpose,
- the contracting parties undertake to promote the common purpose.
These features define the basic form of society, the so-called society under civil law - GbR - (also called "BGB society"). Within the numerous corporate forms, a distinction is made between partnerships (for example the GbR, the OHG and the KG ) and corporations (for example associations under civil law, the stock corporation (AG) and the GmbH ). The partnership differs from the association in that its legal existence depends on the shareholders and its organizational structure. According to the prevailing opinion and systematics of the law, the basic form of partnerships is a society under civil law, the basic form of associations is an association under civil law .
Partnerships are not legal entities and therefore have no legal personality of their own under the law, although in practice - with the exception of the silent partnership - they are independent of their membership of rights and obligations.
- EWIV European economic interest group
- GbR Society under civil law
- KG limited partnership
- oHG open trading company
- Partner shipping company
- PartG partnership company
- silent Society
The registered association and the foundation with legal capacity are also independent legal entities, but not corporations. The association has members, but not necessarily assets. The foundation with legal capacity has assets permanently dedicated to the purpose of the foundation, but no members, partners or owners.
- AG Aktiengesellschaft
- eG registered cooperative
- GmbH Company with limited liability, also in the form of the UG (limited liability) entrepreneurial company
- KGaA limited partnership based on shares
- REIT-AG Aktiengesellschaft, exclusive activity in the real estate sector
- SCE European Cooperative
- SE European stock corporation
Cross-legal regulatory problems
In addition, there are mixed forms that are composed of several companies (corporations and partnerships). A corporation or foundation acts as the personally liable partner of a partnership or KGaA.
- AG & Co. KG
- AG & Co. KGaA
- AG & Co. OHG
- GmbH & Co.
- GmbH & Co. KG
- GmbH & Co. KGaA
- GmbH & Co. OHG
- Foundation & Co. KG
Change of legal form
In German company law, there are three forms of liability , namely the corporate responsibility , the attribution (especially in the directors' liability ) and piercing the corporate veil . The latter is about extending the legal consequences of liability to a third party behind the actual addressee of the norm . In corporate law, one also knows corporate liability .
Conflict of laws
In German legal practice , the seat theory has so far been predominant. Thereafter, the law of the country in which the company has its actual administrative seat is decisive . The counter-model to the seat theory is the foundation theory . After that, the legislation at issue is State applicable where the company was founded and registered, even if the company moved its administrative headquarters in another country. Problems arise here, however, with the mailbox companies ; and a race to the bottom is possible, i.e. an influx of countries that have lower requirements for the establishment (see also Delaware effect ). In the European Union , since the ECJ judgments Daily Mail , Centros , Überseering and Inspire Art, due to the required freedom of movement , the foundation theory has also applied to legal persons - albeit limited to companies that are located in a member state of the European Union or a state of the European Free Trade Association (with With the exception of Switzerland, which has not ratified the EEA Agreement). This has in Germany also to a strong increase in Limiteds out.
More recently - especially in the wake of the more recent supreme court rulings, according to which companies founded in the EU must be recognized in other EU member states due to the freedom of establishment under European law if these companies relocate their effective administrative seat to another EU country - increasingly mixed forms with foreign company forms (e.g. Limited & Co. KG )
Collections of laws
- Uwe Hüffer (Ed.): Company law . 10th, revised edition. CH Beck, Munich 2009, ISBN 978-3-406-58754-2 .
- Barbara Grunewald : Corporate Law . 7th, completely revised edition. Mohr Siebeck, Tübingen 2008, ISBN 978-3-16-149788-9 .
- Johann Kindl : Company Law . 1st edition. Nomos, Baden-Baden 2011, ISBN 978-3-8329-1995-5 .
- Friedrich Klein-Blenkers: Legal forms of the company . 1st edition. CF Müller, Heidelberg 2009, ISBN 978-3-8114-3263-5 .
- Eugen Klunzinger : Basic features of company law . 15th, revised and expanded edition. Vahlen, Munich 2009, ISBN 978-3-8006-3579-5 .
- Friedrich Kübler , Heinz-Dieter Assmann : Company law . 6th, revised and expanded edition. CF Müller, Heidelberg 2006, ISBN 3-8114-3110-2 .
- Karsten Schmidt : corporate law . 4th, completely revised and enlarged edition. Heymanns, Cologne 2002, ISBN 3-452-24679-5 .
- Jan Wilhelm : Corporation law . 3rd, revised and expanded edition. de Gruyter, Berlin a. a. 2009, ISBN 978-3-89949-461-7 .
- Herbert Wiedemann: Corporate Law . Volume I - Basics. CH Beck, Munich 2004, ISBN 3-406-02248-0 , § 1 II 2.
- Karsten Schmidt : Munich Commentary on the Commercial Code . 2nd Edition. CH Beck, Munich 2005, ISBN 3-406-52627-6 .
- Martin Henssler, Lutz Strohn (Ed.): Corporate Law. Comment . 1st edition. CH Beck, Munich 2011, ISBN 978-3-406-56766-7 .
Journals / articles
- Journal of corporate and corporate law (ZGR) . ISSN 0340-2479 .
- New journal for corporate law (NZG) . ISSN 1434-9272 .
- Heribert Hirte: The development of company and company law in Germany in 2010 (following NJW 2010, 2177). In: NJW 10/2011, p. 656.
- kapitalmarktrecht-im-internet.eu - overview with further references to German and European legal bases
- Uwe Wesel : History of the law: From the early forms to the present. CH Beck, Munich 2001, ISBN 978-3-406-54716-4 . P. 336 and p. 394 f.
- Hartwig Sprau: Civil Code . Ed .: Otto Palandt. 78th edition. 2019, p. 1297 (§ 705, Rn. 4 ff.) .
- European Court of Justice: Judgment of the Court of Justice of 9 March 1999 in Case C-212/97 regarding a request submitted to the Court of Justice under Article 177 of the EC Treaty of Højesteret (Denmark) in the pending litigation Centros Ltd v Erhvervs- og Selskabsstyrelsen for a preliminary ruling on the interpretation of Articles 52, 56 and 58 of the EC Treaty . In: Collection of case law . 1999, p. I-1484-1498 ( , accessed February 21, 2015 ).
- European Court of Justice: Judgment of the Court of Justice of 5 November 2002 in Case C-208/00 (request for a preliminary ruling from the Federal Court of Justice): Überseering BV v Nordic Construction Company Baumanagement GmbH (NCC) . In: Official Journal of the European Communities . C 323, December 21, 2002, p. 12–13 ( , accessed February 21, 2015 ).
- Court of Justice: judgment of 30 September 2003 in Case C-167/01 (reference for a preliminary ruling from the Kantongerecht): Kamer van Koophandel en Fabrieken voor Amsterdam to Inspire Art Ltd . In: Official Journal of the European Communities . C 275, November 15, 2003, p. 10–11 ( , accessed February 21, 2015 ).
- Federal Court of Justice judgment of October 27, 2008 - Az. II ZR 158/06 and Az. II ZR 290/07
- OLG Frankfurt, decision of April 24, 2008 , Az. 20 W 425/07, full text.