D&O liability

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Under O liability refers to the civil or criminal liability of organ trustees of the organs of legal persons or associations of persons for their illegal actions .

General

The founder of the organ liability theory is Jan Wilhelm , who viewed organ liability as a "due diligence of the organ administrator". The legal institution of directors 'and officers' liability closes a loophole in the law , because German criminal law does not recognize any criminal liability for companies or companies ( Latin societas delinquere non potest ).

Therefore it requires a legal standard , which defines the extent to which criminal offenses that in the organizational structure of a corporation committed or other association of persons, the responsible representatives of the company attributed to be. In civil law, on the other hand, these legal persons or associations of persons are liable for damages incurred , but there is also the possibility of personal liability of the administrators working in their bodies. It expresses itself in the responsibility of the organ administrator for damage to the organ owner and third parties.

Organ liability in civil law

According to § 31 BGB , the association is liable for the damage that a member of the Board or any other constitutionally called to be representatives of an offense committed in execution of the rightful chores, for damages injures a third mandatory action. This provision does not only apply to associations, but to all legal persons and legal persons under public law ( Section 89 (1) BGB). For the status of “constitutionally appointed representative”, it is sufficient if the company rules ( work instructions ) assign significant, essential functions of the legal person for independent and responsible fulfillment. The company is therefore also civilly liable for employees who are not administrators. The law applies to § 31 BGB since February 1911 on partnerships ( OHG , KG to).

The tortious external liability of the organ administrators results from the law of the unlawful act . You are personally and subsidiary liable to outside third parties in the event of intentional immoral damage according to § 826 BGB, if the controlling company (the company) fails as a liability debtor - e.g. due to insolvency . So who decided BGH in July 2004 that the two board members of Infomatec the shareholders of the Company by a knowingly false hoc announcement Ad with inflated orders from customers deceived had and therefore had to pay damages. However, board member liability is excluded if there is no breach of duty ( Section 93 (1) sentence 2 AktG). This is the case if, when making a business decision , the board member could reasonably assume that he was acting on the basis of appropriate information for the benefit of the company. However, as soon as an administrator directly damages a third party through active action and fulfills the requirements of Section 823 (1) of the German Civil Code (BGB), a personal liability arises.

Liability for executive bodies is not limited to unauthorized acts, but also extends to contracts concluded with third parties . In the case, the Federal Court of Justice ruled in December 1989 that the fraudulent concealment of a lack of property by the mayor as administrator makes the organizer (the municipality ) liable for damages. The knowledge of an organ member authorized to represent in a matter is to be regarded as the knowledge of the organ and thus also to be attributed to the legal person. This also applies if the board member did not participate in the relevant legal transaction himself. The attribution of knowledge comes into consideration even if the representative did not know anything about the legal transaction to be assessed; even the departure of the governor from office does not prevent the continuation of the attribution of knowledge.

Internal and external adhesion

While the internal liability concerns possible claims of the controlling company against its own administrators, one understands by the external liability claims for damages of external third parties such as customers or other contractual partners against the controlling agency that were caused by the administrator.

Internal liability

Internal liability concerns breaches of duty by an administrator towards the controlling company. In the case of the stock corporation, it is regulated for the management board ( § 93 AktG) and the supervisory board ( §§ 93, 116 AktG), in the case of the SE in accordance with § 39 SEAG for its administrative board and in the case of the GmbH for its managing director ( § 43 GmbH Act ) codified. For the board of directors of the cooperative, this is laid down in Section 34 GenG, for the supervisory board in Sections 34 and 41 GenG. In Section 93 (3) AktG, nine facts are listed that are to be regarded as internal liability subject to compensation.

External liability

Often the executive body liability is understood as the external liability of the executive bodies to third parties, but it usually only becomes virulent in a corporate crisis. An injured third party will only assert claims directly against the board member if his claims cannot be met by the company due to insolvency . That is why external liability only comes into play in the event of bankruptcy. The most spectacular case was the action brought by the Kirch Group for damages against Deutsche Bank because of the public statements made by its Chairman of the Board, Rolf-E, which threaten the creditworthiness . Breuer , which the BGH affirmed in January 2006 in accordance with Section 823 (1) BGB. Especially in the USA , however, is the external liability of much greater importance, because here board members together with the controlling company as a co-defendant in class actions ( english class actions ) or individual actions ( English derivative actions sued).

Liability for organs in criminal law

Since companies as such are not punishable and their administrators do not meet the personal criteria, § 14 StGB closes the otherwise threatened criminal liability loopholes. In criminal law, organ liability means “acting for someone else” and deals with the question of whether criminal offenses in the company represented can also be attributed to its administrator. The perpetrator then has to act as an organ. Section 14 (1) of the Criminal Code, which deals with organ liability under criminal law, shifts criminal liability from the company to its administrators. Section 14, Paragraph 1, No. 1 of the Criminal Code assumes that every member of the management is the addressee of the company's duties. The offenses include embezzlement of wages as an employer ( Section 266a StGB), insolvency crimes ( Sections 283 ff. StGB), thwarting foreclosure ( Section 288 StGB), company as a vehicle owner ( Section 21 StVG), as a sales point ( Section 25 Shop Closing Act) or as a participant in foreign trade ( Sections 17 and 18 AWG ). In addition, there are legal form-specific criminal offenses ( Section 399 AktG, Section 82 GmbH Act).

Corporate law

For the legal area of company law , this regulation can be found in Section 14 (1) StGB. In the case of legal persons, this liability is extended to their bodies, in the case of legal partnerships to their authorized representatives and to legal representatives ( parents , guardians , carers , etc.).

Employment Law

For the area of labor law , the extension of liability to those responsible for managing the company is regulated in Section 14 (2) of the Criminal Code.

Actual representative position

Section 14 (3) of the Criminal Code makes it clear that what matters from a criminal law perspective is the actual performance of the relevant tasks and not the effectiveness of the contract under civil law. This extends the liability of the body of a legal person to the de facto managing director .

Special personal characteristics

As in Section 28 of the Criminal Code, which deals with the criminal responsibility of the instigator or assistant in special offenses , the law uses the term “special personal characteristics”. This first makes it clear that the rules of action for another only apply in the case of special offenses, i.e. only need to be consulted in those cases in which the law only provides for criminal liability for a limited group of perpetrators: otherwise the agent could end up anyway because of the in his person existing perpetrators be brought to justice.

Parallel rules

The criminal law regulation of representative liability corresponds to a corresponding regulation for the administrative offense law in § 9 OWiG .

Public liability

In the general organizational theory of public law , the distinction between the organ as an institutional subject and the changing organ administrators is recognized. The official liability (liability of the regional authorities ) is the financial liability of the state for damages that an organ administrator in the jurisdiction or the sovereign administration has unlawfully and culpably inflicted on an outside legal entity . This liability initially applies to the civil servant himself ( Section 839 (1) BGB), but according to Art. 34 sentence 1 GG, the state takes over the civil servant with discharging effect and is solely liable in external relations. Citizens who conclude an economically significant contract with the municipality and, in case of doubt, even show increased trust in it, must in principle not be placed in a worse position than if they were dealing with a single natural person.

Representative Liability

The jurisprudence has extended the organ liability to a so-called representative liability , according to which the legal person is not only liable for the constitutionally appointed organs, but also for all those natural persons who independently carry out an area of ​​responsibility within the legal person that is normally carried out by an organ would have to be. The point of contact is again § 31 BGB, which includes the private foundation via § 86 BGB and also the public foundations and institutions / corporations under public law via § 89 BGB. In addition, all corporations and partnerships are also covered by Section 31 of the German Civil Code. A decision of the Reichsgericht (RG) from February 1886, which made the managing director of an OHG liable for a compensation obligation, is considered to be groundbreaking . Since February 2003, the GbR has also been one of the norm addressees of organ liability. Not only all legal forms, but beyond the actual administrators, have been affected since October 1967 , who are assigned significant, essential functions of the legal person for independent, self-responsible fulfillment through the "general operating rules and handling".

International

In Switzerland , according to Art. 54 ZGB, legal persons are able to act as soon as the organs essential for this according to the law and the statutes have been appointed. According to Art. 55 ZGB, the organs are called upon to express the will of the legal person; the acting persons are personally responsible for their fault. According to Swiss law, a legal person is only able to act if its organs ( board of directors , executive board) have been determined and assigned to their functions. If the organs act illegally and culpably and cause damage to third parties, they oblige the parent company. The members of the governing bodies are personally and jointly liable to the legal entity.

A spectacular case is the basis of the liability of the executive bodies applicable in Austria . On November 6, 1976, during a state hunt in Yugoslavia , to which the Yugoslav President had invited, the Austrian Ambassador Alexander Otto carelessly shot and killed the French Ambassador Pierre Sebilleau , whose heirs sued the Republic of Austria on the basis of the Austrian Public Liability Act of February 18, 1948. On behalf of the Supreme Court , the federal governing body is also liable for acts of organs abroad, in particular for claims arising from diplomatic or consular representation . Although the damage occurred in the enforcement of Austrian laws, the French ambassador did not have a public law relationship with the Republic of Austria; On the contrary, he only came into the harmful sphere of activity of the Austrian body through a contact that was not intended in this way while performing his own official duties. Because of the reference to the law of the scene of the accident contained in Austrian civil law, the state is liable for the Supreme Court to the extent of the compensation regulations applicable in Yugoslavia. According to the law of the scene of the accident, it must also be assessed to what extent French law, for example according to the personal statute, is to be applied for claims due to lost maintenance or pension payments.

See also

Individual evidence

  1. ^ Jan Wilhelm, Legal form and liability in the case of legal persons , 1981, p. 354
  2. ↑ Jürgen Ellenberger , in: Otto Palandt , Commentary BGB , 73rd edition, 2014, § 31 Rn. 3
  3. ↑ Jürgen Ellenberger, in: Otto Palandt, Commentary BGB , 73rd edition, 2014, § 31 Rn. 6th
  4. ↑ RGZ 76, 35, 48
  5. ↑ Stefan Martin Schmitt, D&O insurance and D&O insurance , 2007, p. 20
  6. ↑ BGH, judgment of July 19, 2004, Az .: II ZR 218/03
  7. ↑ Stefan Martin Schmitt, D&O insurance and D&O insurance , 2007, p. 23
  8. ^ BGH, judgment of December 8, 1989, Az .: V ZR 246/87
  9. ↑ BGHZ 41, 282, 287
  10. ^ RG JW 1935, 2044
  11. ↑ BGH NJW 1984, 1953, 1954
  12. ^ BGH WM 1959, 81, 84
  13. ↑ Gerhard Ries / Gunhild Peiniger, Liability and Insurance of the Company Management , 2015, p. 14 ff.
  14. ↑ BGH, judgment of January 24, 2006, Az .: XI ZR 384/03
  15. ↑ Hans Kudlich, Commercial Criminal Law , 2014, p. 55
  16. ↑ Max Hachenburg / Peter Ulmer, Großkommentar GmbH-Gesetz , Volume 3, 1997, before Section 82 Rn. 8th
  17. ↑ Hans Julius Wolff , tax group and legal person , Volume 2: Theory of Representation, 1934, p. 228 f.
  18. ↑ BGH, judgment of December 8, 1989, Az .: V ZR 246/87, Rn. 14th
  19. ↑ Alpmann Brockhaus, Fachlexikon Recht , 2005, p. 984 f.
  20. ^ RG, judgment of February 5, 1886, Az .: Rep. I. 390/85
  21. ↑ BGH, judgment of February 24, 2003, Az .: II ZR 385/99
  22. ^ BGH, judgment of October 30, 1967, Az .: VII ZR 82/65; "Branch manager judgment"
  23. ↑ Walter Noser / Patrick Strub / Karin von Flüe / My Chau Ha, ZGB for everyday life , 2014, p. 84
  24. ^ OGH, judgment of February 17, 1982, Az .: 1 Ob 49/81; EvBL. 1982 No. 138 = JBl. 1983, p. 260