The term legal person is ambiguous:
- 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 .
- 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 .
- 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, BGB regulate the associations ( BGB) - "Associations are also AG, KGaA, GmbH, cooperative, VVaG ”-, the foundations ( BGB) and legal persons under public law ( BGB), which are divided into corporation , foundation under public law and institution under public law .
Since the protection of fundamental rights according to 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 para. 3 GG another and different from the in BGB. A legal person within the meaning of (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).para. 3
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 BGB a three division is made: natural person , legal person and the legal partnership , defined in paragraph 2 BGB" as a partnership, which is endowed with the ability to grant rights acquire and enter into liabilities ". According to Abs. 2 BGB the OHG is a "legal partnership", according to 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 , and 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:
- Presence of organs : Legal persons only acquire the capacity to act through their organs, which consist of one ( individual organ ) or several ( collegial organ ) natural persons who act on behalf of the legal person by virtue of the legal person's statutes and can directly authorize and / or oblige them through their actions .
- External organization : The legal person is represented by external organization by means of its own action organization (organs). In the case of external unions, the shareholders do not take on the management and representation, but external third parties.
- Ability to independently pursue common interests : The common interest can consist of the pursuit of a political goal ( parties ) or an economic goal ( profit maximization ), for which the law gives them legal capacity. Objectives and / or formal objectives are also pursued .
- Separation principle for liability : It states that , as a rule, only the company's assets are liable for the liabilities of a corporation towards the creditors , but not the private assets of the partners as well; the exception is direct liability . In the case of partnerships, on the other hand, the personally liable partner is always liable with his or her private assets.
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 persons regularly acquire their legal capacity by being entered in one of the public registers maintained by the local courts ( Association BGB, AG : Paragraph 1 AktG , GmbH : Paragraph 1 GmbHG , Cooperative : GenG ). In 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 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 ( OWiG , StPO , AO ).
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 ( Paragraph 3 of the Basic Law) and can therefore be bearers of fundamental rights .
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, (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 (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 .
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 and 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:
- Corporations under private law
- Foundation under civil law.
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
- Authorities ( federal government , states , counties and municipalities )
- Association bodies ( municipal associations )
- Personal and real corporations ( chambers of industry and commerce , chambers of crafts or professional chambers such as the bar associations ), and - predominantly - universities .
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
- Foundation universities such as the University of Göttingen or the University of Lübeck . Not legally competent is z. B. the federal university for public administration .
According to federal law ( 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 ( (2) InsO). This applies e.g. B. for all municipalities (see e.g. § 128 Paragraph 2 GemO NRW).(1)
Some religious communities have been recognized as religious societies under public law on the basis of the provisions of and WRV that continue to under 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 (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 in19.3 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.
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