Legal person

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The term legal person is ambiguous:

  1. In general, a legal person is anything that can bear rights or obligations. In this more legal-theoretical sense, the human being as a natural person is also a legal person. The term legal person is then synonymous with the term person in the sense of the law or legal entity .
  2. According to prevailing linguistic usage, a legal person is only a legal person that is not a human being (legal person in the broader sense) . An (older) synonym is then a moral person .
  3. Traditionally, the term legal person is only used for legal persons that the legislature has expressly recognized. (This can be called a legal person in the narrower sense . However, such terminology is not common.)

What a national legislature recognizes as a legal person can vary. Whether he ascribes legal capacity and thus legal personality to an animal or tree is a question of politics . Another question is whether there is a given legal capacity that he must not deny. In Roman law, slaves were not legal persons, but things .

Situation in Germany

In Germany, the system of the BGB only knows legal persons in the narrower sense: Under the heading Legal persons, §§ 21 ff. BGB regulate the associations ( §§ 21–79 BGB) - "Associations are also AG, KGaA, GmbH, cooperative, VVaG ”-, the foundations ( §§ 80–88 BGB) and legal persons under public law ( § 89 BGB), which are divided into corporation , foundation under public law and institution under public law .

Since the protection of fundamental rights according to Art. 19 para. 3 GG can not depend on the discretion of recognition as a legal entity by the simple legislator, is the legal term for the legal person in Art. 19 para. 3 GG another and different from the in BGB. A legal person within the meaning of Article 19 (3) of the Basic Law is "any organization [...] to which the legal system grants a (partial) legal capacity, at least in some areas". This then includes organizations with partial legal capacity, such as the civil law company , the general partnership or the non-legal association (within the meaning of the BGB).

The historically determined terminology of the BGB and the expansion of the legal personality of organizations bypassing the will of the BGB legislature (for example the legal capacity of the (according to the BGB) unincorporated association or the (partial) legal capacity of the external GbR ) lead to a " confusing "terminology of the legislator: In the newer regulation of § 14 BGB a three division is made: natural person , legal person and the legal partnership , defined in § 14 paragraph 2 BGB" as a partnership, which is endowed with the ability to grant rights acquire and enter into liabilities ". According to § 14 Abs. 2 BGB the OHG is a "legal partnership", according to § 11 Abs. 2 Clause 1 InsO a company without legal personality.


Together with the natural persons , the legal persons form the generic term persons , to which the civil law contrasts the things and rights . While the natural person can exercise their ability to act in everyday life by acting themselves, the legal person needs natural persons to act for them. The prevailing opinion today regards the legal person as acting independently through its organs , whose actions are regarded as acts of the legal person within their sphere of activity. Legal persons only acquire their ability to act through the administrators working in the organs . Actions of the organ administrator directly represent actions of the legal person, but are not a case of legal representation .

A distinction must be made between three levels: organ support - organ - organ administrator. The parent company is a legal person, the body itself can in particular be the board of directors , management , supervisory board , administrative board , shareholders' meeting or general meeting . The organ administrators who work for this assume rights and obligations towards the organizer. Only the board of directors or the management, whose task consists in representing the legal person in and out of court and who are entrusted with the management of the business internally, can be considered as organs with external impact .


Associations have been known as the original form of the legal person since ancient times . This is documented for the 1st century AD in Jewish trading companies . The institute was also important in Roman law , although it was not referred to as such. Conceptually, institutions such as the state , municipalities , corporations and corporations (universities) , as well as their personal and asset associations, as well as associations. At least three people were required to found an association in Rome. The corporations had legal capacity and were themselves subject to the contractual obligations entered into. They existed independently of the exchange of their members, the corporation and not the member was liable for debts . Foundations could also be independent bearers of rights and obligations; In the late antique Codex Justinianus , part of the important body of law of the Corpus iuris civilis , foundations are named as legal persons.

Communities lacked this quality . Fractional communities were recorded rather than partnerships . The “Societas” was used as an economic forum (societas universorum bonorum) for commercial transactions (societas negotiationis alicius) and other purposes (societas rei unius) .

From the middle of the 14th century, one broke away from Roman corporate law. Bartolus de Saxoferrato advocated the legal personality of the fictitious person in the case of corporations and property associations, in contrast to the natural person . In Thomas Hobbes ' Leviathan of 1651, “fictitious person” appears. Samuel Pufendorf introduced the term “moral person” (“persona moralis”) in 1672. This designation is still used today in France and Spain for the legal person.

The corporation was in England in the 17th century a corporation by virtue of royal award certificate ( Royal Charter ) . A first document of this kind even dates back to 1347. The corporations that came into being with a royal award document included the East India Company , as well as the Bank of England . In this way they acquired legal capacity . Formation by state act only lasted until the Joint Stock Companies Act of 1884. In Germany, the corporations included the guilds , gaffs , guilds and guilds to which certain professional groups belonged. Churches were also regarded as legal persons, with the Codex Iuris Canonici only using the “persona moralis” for the Catholic Church and the Apostolic See , because both had legal personality from “divine law”.

The General Prussian Land Law (PrALR) of 1794 recognized that corporations did not yet have their own will; Only their representatives could express their will (I 7, § 44 APL). Contractual commitments were subject to state concessions (I 5, § 26 APL). As “fictitious persons”, they were only given property rights and certain political rights and therefore had limited legal capacity. Gustav von Hugo coined the term legal person for the first time , but only used it for the corporation. Arnold Heise first used it as an umbrella term for the legal system in his work The Outline of a System of Common Civil Law . A variety of theories on the legal person followed.

Heise's teaching quickly caught on and is the basis for the influential account of Friedrich Carl von Savigny . Savigny generally joined the Pandectic Studies and the Austrian School after they had approached the Historical School of Law . Through a representation (transfer of legal capacity) the legal person got the possibility of a legal activity within the framework of fictional theory . The new doctrine of the legal person also meant a new theory of the independent foundation. Puchta saw the personality of the legal person linked solely through the legal term. Arndt understood legal fiction as a purely intellectual one. Bernhard Windscheid deviated even further from Savigny's view, even considering legal persons to be capable of tort . In the second half of the century, the view was established that the formation and expression of wills was based on human associations (social life), which made fiction superfluous. The associations are perceived as an organism. Building on this, Otto von Gierke developed a cooperative theory in 1887 , which assumes that legal persons “revealed” themselves to the outside world as administrators through the natural persons in the body. The organs do not face the legal person as independent third parties, rather their will and actions are identical to that of the legal person.

None of the theories were legally drafted in Germany because the legislature had not entered into the theoretical dispute. The Civil Code from January 1900 decided in § 31 , § 86 and § 89 BGB for the offense ability of the association (a legal entity) and is thus the result of organ theory followed. According to another view, the legal person only functions as an attribution scheme . Because the law is an order of human behavior, all statements about the rights and obligations of a legal person must be translated into a code of conduct for people: The obligations and powers of a legal person are therefore to be assigned to the people who are organized in the association. Who has to fulfill which duties of the association and who is “responsible” (has the competence) to exercise certain legal powers of the association is determined by the constitution (or the statutes) of the association.

In the meantime, the Prussian Stock Corporation Act, introduced in November 1843, designated the stock corporation as a legal entity that required approval (Section 8 PrAktG), but did not consistently design it. It standardized the different regulations in the Rhine Province (with the French Code de Commerce ) and the other parts of the country (PrALR) through general provisions on public limited companies. In 1843, Georg Beseler understood the legal entity succinctly as "the union of several people to achieve common purposes in the long term". A monograph from 1854 describes the legal person as "an inherently impersonal being, to whom the state has given rights and obligations through a legal fiction ".

While Alois von Brinz 's theory of special purpose assets was rejected, the concept of “special purpose assets” remained. In 1969 Gerold Schmidt traced the imprecise, often iridescent wild growth of the term in numerous legal, economic and tax areas in a monographic inventory. The term "special purpose assets" is often used when the legal owner of an asset is unknown or is to be deliberately concealed. In most cases, so-called “special-purpose assets” are to be classified as trust assets that are attributable to the property of the trustor .

Characteristics of legal persons

Legal persons have four main characteristics:

These characteristics are equally pronounced for all legal entities. In addition, a change of members or shareholders does not change the legal position of the legal person, which is closed for an unlimited period of time.

Legal issues

Legal persons regularly acquire their legal capacity by being entered in one of the public registers maintained by the local courts ( Association Section 21 BGB, AG : Section 41 Paragraph 1 AktG , GmbH : Section 11 Paragraph 1 GmbHG , Cooperative : Section 13 GenG ). In Art. 19 3 of the Basic Law. It is determined that the fundamental rights also apply to domestic legal entities, as applicable by its very nature to this. According to this, legal persons are initially the legal persons of private law in the true sense. In addition, the constitutional term also applies to commercial companies (OHG, KG, GbR) and non-incorporated associations, insofar as they have legal positions according to civil law regulations (e.g. property rights ) or are party to parties . The fundamental rights of a legal person under public law, on the other hand, is to be denied if it performs public tasks . The same applies to legal entities under private law that are held or controlled by the public sector .

The BGB only contains regulations for legal entities under private law. However, it is also used when legal persons under public law are involved in private law through so-called fiscal action . The legal person lacks its own nationality , so the seat of the main administration is decisive. The legal person is not responsible under criminal law for lack of natural capacity to act, but can be called upon to pay a fine if their organs have committed a criminal offense or an administrative offense ( Section 30 OWiG , Section 444 StPO , Section 401 AO ).

Art. 140 GG elevates Art. 136 to Art. 139 and Art. 141 WRV to a component of the Basic Law, so that according to Art. 137 para. 5 WRV the religious societies have remained corporations under public law.

According to the prevailing opinion , companies under civil law are not legal persons. However, they are covered by the concept of legal persons in the sense of constitutional law ( Article 19, Paragraph 3 of the Basic Law) and can therefore be bearers of fundamental rights .


A general distinction must be made between legal persons under public law and legal persons under private law, depending on whether public law or company law applies.

Legal persons under public law are the corporation , the institution under public law or the public law foundation that owe their creation to a sovereign act , in particular a law . The legal persons under private law are created through a private, autonomous partnership agreement and its entry in a public register ( association register , commercial register or cooperative register ).

Quasi-legal persons express the fact that there are also legal forms which only have partial legal capacity , but which are allowed to act like legal persons in legal dealings. For example, Section 124 (1) of the German Commercial Code ( HGB ) stipulates that the general partnership (OHG) can acquire rights and enter into liabilities under its company, acquire ownership and other real rights to land, and can take legal action in court. In accordance with Section 161 (2) of the German Commercial Code (HGB), this also applies to the limited partnership (KG). Therefore, the OHG and the KG - in which the separation principle is not implemented - are counted among the quasi-legal persons. In addition, all legal persons under public law have only partial legal capacity because their legal capacity is limited to performing the public tasks assigned to them .


In the context of the classification of legal entities , legal entities are divided into natural persons and legal persons. In turn, they are divided into legal persons under private law (or civil law ) and legal persons under public law .

Natural person
Legal person
under public law [ +/− ]


Local authority
Personal corporation
Association body
Real corporation
Legal person
under private law [ +/− ]

Legal foundation

Registered cooperative
Registered association
Old legal association
Mutual insurance association
Investment stock corporation
REIT public company
Company with limited liability
Limited partnership based on shares
Entrepreneurial company (limited liability)
Society under civil law
Limited partnership
Open trading company
Partnership company
Partner shipping company
silent Society
embryo Nasciturus
Nondum conceptus
Community of property
Community of heirs
Homeowners Association

Legal person under private law

In the case of legal persons, private law differentiates between the membership-organized corporation and the institution consisting of earmarked assets, e.g. B. a foundation or corporation . The basic form of the corporation under private law is the registered association (e.V., see § 21 and § 22 BGB). In particular with regard to commercial law , the term corporation was coined. Legal persons acquire their legal capacity through entry in a register kept by a court (e.g. commercial register , register of associations ).

Legal persons under private law are:

Some forms of partnerships are not considered to be legal persons. These include the limited partnership , the open trading company (OHG) and the civil law partnership (GbR).

Legal person under public law

Legal persons under public law are legal subjects who have legal capacity by virtue of the law in public and private law. They exist on the basis of sovereign acts under public law or recognition under public law (e.g. parishes or churches). What they have in common is the right to self-government, they are subject to state supervision and can usually set objective law within their jurisdiction.

A general distinction is made between:

Subspecies of corporations for which compulsory membership is a frequent criterion for their establishment are

The institutions are divided into

  • federal institutions (e.g. the German National Library ),
  • regional broadcasters (e.g. broadcasters ),
  • municipal institutions (e.g. commercial enterprises spun off from a municipality).

One of the foundations of public law such belong. B. the

but also

According to federal law ( Section 12 (1) InsO ), the federal government and the states are not eligible for bankruptcy proceedings . The same applies to those legal entities under public law of a state if they are subject to the supervision of a state and state law determines this ( Section 12 (2) InsO). This applies e.g. B. for all municipalities (see e.g. § 128 Paragraph 2 GemO NRW).

Some religious communities have been recognized as religious societies under public law on the basis of the provisions of Articles 136-139 and Article 141 WRV that continue to apply under Article 140 of the Basic Law . From this derives the right to an independent labor law of the churches .


While the BGB stayed out of the theoretical dispute, the Swiss Civil Code (ZGB) is clearly committed to organ theory: “Legal persons are capable of acting” (Art. 54 ZGB), whose “organs are called to express the will of the legal person give ”(Art. 55 ZGB). In Austria , too , associations, cooperatives, GmbHs , stock corporations , funds under public law , foundations as well as estates and collective assets belong to the legal entities. The regulations in both countries largely correspond to German law.

The Netherlands knows natural persons ( Dutch natuurlijk persoon ) and legal persons ( Dutch Rechtsspersoon ), namely private law ( Dutch privaatrechtelijke Rechtsspersoon ) and public law ( Dutch publiekrechtelijke Rechtsspersoon ). The private law includes association ( Dutch vereniging ), cooperative ( Dutch coöperatie ), mutual insurance association ( Dutch onderlinge waarborgmaatschapij ), public limited company ( Dutch naamloze vennootschap ), GmbH ( Dutch besloten vennootschap met beperkte aansprakelijkheid ) and foundation ( Dutch stichting ). Organs are the board of directors ( Dutch bestuur ), the supervisory board ( Dutch raat van commissarissen ) and the general assembly ( Dutch algemene vergadering van aandelhouders ). The legal source is the Burgerlijk Wetboek (Book 2, Title 1).

In France , the Civil Code (CC) differentiates between the natural person ( French personne physique ) and the legal person ( French personne morale ), which has its own legal personality ( French personnalité juridique ). It is subject to the principle of specialty, according to which "the powers of legal persons are limited to the acts that are useful for the fulfillment of their object, as defined in their statutes, and the acts accompanying them according to the regulations applicable to them" (Art. 1145 CC). Companies are only allowed to conduct business that their articles of association provide. Your legal, judicial or contractual representative is only entitled to act within the scope of the powers assigned to him (Art. 1153 CC). In addition to private law ( French Personne morale de droit privé ), there are also public law ( French Personne morale de droit public ) and mixed legal entities ( French Personne morale de droit mixte ).

In common law , the legal person ( English juridical person ) is distinguished from the natural person ( English natural person ). The subtype of legal entities ( English legal entity ) includes in particular companies ( English company , corporation , municipal corporation ), cooperatives ( English cooperative ), partnerships ( English partnership ) or states ( English sovereign state ) and their subdivisions ( English municipalities ).

Protection of fundamental rights for foreign legal persons

Foreign legal persons that have their seat in the European Union are to be treated according to the more recent case law of the Federal Constitutional Court in the same way as domestic holders of fundamental rights within the meaning of Article 19 (3) of the Basic Law if their activity has a "sufficient domestic connection".

This will regularly be the case if the legal person is active in Germany and can sue and be sued here in the specialized courts. In this case, the European law prohibition of discrimination against foreigners and the fundamental freedoms do not supersede the regulation in Article 19.3 of the Basic Law, but they do cause the protection of fundamental rights to be extended to other legal subjects of the European internal market. The protection of fundamental rights in these cases had previously only been advocated in the literature.

Web links

Individual evidence

  1. ^ Klaus F. Röhl, Hans Christian Röhl: General legal theory . 3. Edition. C. Heymanns, Cologne a. a. 2008, p. 458 , § 57 III .
  2. ^ Norbert Campagna: Person . In: Eric Hilgendorf , Jan C. Joerden (Hrsg.): Handbuch Rechtssphilosophie . Metzler, Stuttgart 2017, ISBN 978-3-476-05309-1 , pp. 373 (375) .
  3. Jauernig / Mansel: BGB , 17th edition, 2018, preliminary. to §§ 21 BGB, Rn. 3
  4. a b Remmert: Article 19 . In: Theodor Maunz , Günter Dürig (ed.): Basic Law. Comment . Beck, Munich, DNB  550899677 , Rn. 37 (loose leaf, as of 11/18).
  5. a b Cf. Jauernig / Mansel: BGB , 17th edition 2018, preliminary. to §§ 21 BGB, Rn. 1
  6. Heinz Hübner : General Part of the Civil Code 1996, p. 117.
  7. Thomas Zerres: Civil law . 9th edition. Springer, Berlin, ISBN 978-3-662-58459-0 , pp. 39 .
  8. ^ Georg Jellinek : System of subjective public rights , 1905, p. 30.
  9. ^ Digest 50, 16, 85.
  10. Ulpian : Digest 3, 7, 4.
  11. ^ Joseph Lammeyer: The legal persons of the Catholic Church. 1971, p. 57 ff.
  12. ^ Karl von Czyhlarz : Textbook of the Institutions of Roman Law 1908, p. 71.
  13. Iulius Paulus : Digesten , 10, 2; 25, 16.
  14. Gaius : Digesten , 10, 3, 2 pr .; Andreas M. Fleckner : Antike Kapitalvereinigungen 2010, p. 120 f.
  15. ^ Andreas M. Fleckner: Antique capital associations. 2010, p. 127.
  16. Thomas Hobbes : Leviathan I , XVI, 1651, p. 151 f.
  17. ^ Samuel Pufendorf : De jure naturae et gentium libri octo , book 7, volume 2, 1672 / edition 1744, p. 142 f.
  18. ^ Otto Gerhard Oexle : The medieval guild as a research problem. In: Blätter für deutsche Landesgeschichte 118, 1982, p. 18.
  19. ^ Gotthardt early care: City and citizens in the 18th century. 1993, p. 173.
  20. Hans-Joerg Salízites: Lexicon of English Business and Legal Language , Volume 2: German-English, 1994, p. 158 f.
  21. Christian Friedrich Koch: General Land Law for the Prussian States - Commentary in Notes , Volume 1, Issue 1, 1870, p. 175 FN 26.
  22. Gustav von Hugo : Textbook of natural law, as a philosophy of positive law . Berlin, 1798, p. 445.
  23. ^ Arnold Heise: Outline of a system of common civil law for the purpose of Pandecten lectures. 1819, p. 25 FN 15.
  24. Helmut Coing : European Private Law 1800–1914 , Munich 1989. p. 338.
  25. ^ Friedrich Carl von Savigny : System of today's Roman law , Volume II. 1840, p. 282 ff.
  26. ^ Georg Friedrich Puchta : Kleine civilistische Schriften , Leipzig 1851, p. 499.
  27. ^ Carl Ludwig Arndts von Arnesberg : Lehrbuch der Pandekten , 9th edition, Stuttgart 1877. P. 38. ( online )
  28. ^ Bernhard Windscheid : Textbook of Pandektenrecht . Volume I, p. 168.
  29. ^ Otto von Gierke : The cooperative theory and the German jurisprudence. 1887, p. 603 ff.
  30. Horst Baumann: The knowledge of legal persons of private law of legally relevant circumstances. In: ZGR 1973, 284, 290 f.
  31. Heinz Hübner: General part of the civil code. 1996, p. 117.
  32. Hans Kelsen : Pure legal theory. 2nd edition, 1960, p. 178 ff .; Reinhold Zippelius : General state theory. 16th edition, § 13 II; The essence of law. 6th edition, chap. 2 g.
  33. Reinhold Zippelius: Das Wesen des Rechts , chap. 1 b, and Philosophy of Law, 6th edition, § 3 I.
  34. Reinhold Zippelius: Das Wesen des Rechts , chap. 2 g; ders .: General State Doctrine , §§ 13 II, 14 I.
  35. Georg Beseler: People's Law and Legal Law. 1843, p. 161.
  36. Adam Joseph Uhrig: Treatise on legal persons 1854, p. 5.
  37. Gerold Schmidt: On the concept of "special purpose assets" in law and finance. In: Verwaltungsarchiv, Zeitschrift für Verwaltungslehre, Verwaltungsrecht und Verwaltungspolitik, 60th volume, Carl Heymanns Verlag, Cologne 1969, pp. 293–331 and continuation 61th volume, 1970, pp. 60–81.
  38. ^ Alpmann Brockhaus: Fachlexikon Recht. 2005, p. 762.
  39. Reinhard Bork : General Part of the Civil Code 2006, p. 79.
  40. BVerfG, decision of September 2, 2002, Az. 1 BvR 1103/02, full text .
  41. BVerfGE 128, 226 .
  42. Heinz Hübner: General part of the civil code. 1996, p. 116.
  43. BGHZ 53, 181 , 183.
  44. Heinz Hübner: General part of the civil code. 1996, p. 115.
  45. VGH Munich , judgment of September 26, 2013, Az. 20 BV 13.428, full text .
  46. BVerfG, decision of July 19, 2011, Az. 1 BvR 1916/09, full text .
  47. BVerfG: On the protection of fundamental rights for legal persons from the European Union and the right of distribution under the Copyright Act (imitation designer furniture) , press release no. 56/2011 of 9 September 2011.
  48. ^ Hans D. Jarass : Basic Law for the Federal Republic of Germany . Ed .: Hans D. Jarass, Bodo Pieroth. 7th edition. C. H. Beck Verlag, Munich 2004, ISBN 3-406-51428-6 (Art. 19 GG Rn. 17a with further references).