The corporation is a corporation under private law based on a partnership agreement , the members of which pursue a common, mostly economic, purpose. It is a legal person . Corporations are subject to legally stipulated capital raising and maintenance regulations (→ protection of creditors ).
In Germany there are the following types of corporations (see also HGB , which names all companies that are obliged to submit accounts):(1) No. 2 UmwG and the heading to the second section of Book 3 of the
- the stock corporation (AG) with the special form of the European company (SE)
- the partnership limited by shares (KGaA)
- the limited liability company (GmbH)
- the entrepreneurial company (limited liability) (as a sub-form of a GmbH)
The legal form of the mining union was abolished.
Foreign "corporations" are not corporations in the sense of the HGB and cannot be founded in Germany. Nothing else results from the “Centros” case law of the European Court of Justice, since it only states that a company established in another EU country may fully conduct its business activities through a branch in Germany. However, the foreign company still has to be founded abroad, since only the entry in the register is constitutive.
Essence of the corporation
Conceptually, the corporations build on the model of the association .
Corporations can be operated for any legally permitted purpose. Regardless of whether the purpose is economic or ideal, a corporation is a form merchant . Corporations can be founded by one or more persons. That is why one-man GmbHs or one-man AGs are also possible.
Corporations have the following common characteristics:
- Status as legal person with legal capacity , party capacity ; The existence of the corporation is independent of its members; a corporation is even capable of tort according to BGH rulings ;
- multi-part establishment process (conclusion of the articles of association, establishment of the articles of association by notarial certification , entry in a commercial register );
- Kapitalaufbringungs- and maintenance provisions for the ordinary or share capital
- Representation and management by non-shareholders ( external organization );
- Will formation follows the majority principle based on the capital shares
- no immediate liability of the members in relation to the company's creditors and no or very limited (eg in the incorporation process.) indirect direct liability under full liability of the company with all its assets (separation principle);
As a rule, a corporation is no longer interested in the person of its members (partners, shareholders) after the contribution has been made, since the partners neither have to answer for company liabilities with their assets nor have to provide any services to the company (→ opposite: partnership ) . If a stock corporation issues registered shares with restricted transferability , it keeps a share register ; it thereby knows the names of all shareholders and the number of shares each of them owns.
Types of corporation
The legal forms defined by the legislator as corporations can e.g. B. can be classified according to the marketability of the shares (in the case of the GmbH business share , in the case of the AG share ) and the degree of participation of the shareholders in the management of the company.
According to German law, the share in the GmbH can only be transferred through a notarized assignment contract ( GmbHG ). The same applies to the obligation to assign a business share. The assignment can be linked to the consent of the company in the articles of association (Section 15 V GmbHG, restricted transferability).III
On the other hand, a stock can as a bearer security or order paper will be represented ( Stock Corporation Act (AktG)). As a result, the stock can be transferred in accordance with the rules of a security . Shares are therefore also suitable as securities . In the articles of association, however, the transfer of shares can also be tied to the approval of the company ( II AktG, restricted transferability).
The significantly better circulability of the share compared to the business share shows that the AG, in accordance with the legislature's idea, is designed for a strong change of members and that the GmbH is designed for greater stability among its group of shareholders.
In principle, the managing directors of the GmbH are responsible for the management of the company's business. The shareholders 'meeting can impose restrictions on the managing director at any time , insofar as the shareholders' agreement allows ( I GmbHG).
In the AG, the management board is responsible for managing the company ( AktG). The general meeting , however, can only decide on management issues at the request of the board of directors ( II AktG). The shareholders of the AG are thus largely limited to a capital stake.
The fact that the general meeting of a stock corporation is basically unable to exert direct influence on the management of the company makes the legislative model clear, according to which the AG is designed for a larger number of members than a GmbH.
Share and share capital
The basis for economic activity while the master and share capital of the company, which is introduced in the foundation and can also be changed later. Unless otherwise agreed externally, the corporation has unlimited liability with its corporate assets. If this is used up, the corporation goes bankrupt . Only to the extent that the shareholders can be accused of misuse of the consumption of the capital and can be proven, the so-called existence destruction liability applies .
Corporation and personally liable entrepreneur
- The disclosure requirements associated with the corporation are often avoided.
- In industries or companies with low risk, liability plays only a minor role.
- Many large creditors (e.g. banks ) have their claims secured with personal guarantees from the shareholders. Thus, the effect of the limitation of liability is severely limited.
- The costs of a corporation exceed those of a sole trader.
The shareholders do not have direct rights to the company's assets. The main rights of the shareholders are:
- Voting rights at the shareholders' meeting (if not excluded: preference shares )
- Profit distributions in accordance with the shareholders' resolution
- Share of liquidation proceeds upon dissolution of the company ( residual claim )
Corporations are divided into three size classes in accounting law : small, medium-sized and large companies . Depending on the size of the company, there are stricter accounting requirements. The differentiation with regard to the size class is particularly important for the disclosure requirements .
The classification of a company is determined by HGB based on the characteristics of total assets , sales and number of employees . Large corporations exceed the limits of at least two of the three characteristics of medium-sized companies for two consecutive financial years. The limit values were last increased in 2015.
|Balance sheet total in € million||≤ 0.35||0.35 - 6||6 - 20||> 20|
|Sales in € million||≤ 0.7||0.7 - 12||12 - 40||> 40|
|Employee||≤ 10||≤ 50||≤ 250||> 250|
Boundaries / terminology
The limited partnership is a partnership . The position of the limited partner is similar to that of a shareholder due to the lack of personal liability after the contribution has been made and the limited partner's exclusion from the management of the company.
In general usage, a public company is a company whose shares are widely dispersed. It is not a legal category, but a factual description of the membership. Family companies are not considered to be public companies.
In German legal parlance, a public company is primarily understood to mean any company, regardless of its legal structure, whose participation rights are widely spread. The German jurisprudence seems to use the term of the public company from time to time for partnerships which, due to the wide spread of participation rights, have corporate characteristics. However, this is a factual and not a legal category: the criterion is not the legal form of the company, but the distribution of membership rights among a large number of persons who are not particularly connected and each hold small shares in the company.
In Switzerland, on the other hand, a public company is legally defined. It exists if a company is listed on a stock exchange or if it has issued bonds or if it contributes at least 20 percent of the assets or sales to the consolidated financial statements of a company that is either listed on a stock exchange or has issued bonds.
Other legal persons
Cooperatives and economic associations , like corporations, are legal persons. They differ in the lack of regulations on raising and maintaining capital. They can be used in a similar way to corporations.
For the time between the application for entry in the commercial register and the allocation of the registration number, corporations sometimes use the addition “i. G. ”for“ in formation ”behind the company. For such a company, the rights of the registered company only partially apply - see Vor-GmbH .
The national accounts are different financial and non-financial corporations.
Situation in other countries
New Zealand law only allows for one corporation. It is called Limited or Corporation and is derived from the British variant. The New Zealand Companies Act 1993 does not distinguish between “private” and “public” corporations. In New Zealand the minimum capital is NZ $ 1 . The management consists of at least one director. A secretary, as in UK law, is not provided.
In the United Kingdom of Great Britain and Northern Ireland there is a private and a "public" variant of the corporation, which can be compared with the German GmbH or AG: The Private Company Limited by Shares (Ltd.) is a smaller, private circle of shareholders reserved, while the Public Limited Company (PLC) can also be listed on the stock exchange. The management of the Ltd. consists of one or more directors. It is also essential to appoint a secretary. Both organs can be represented by another company, which is often done by smaller Ltd.s, especially for the secretary. At the PLC, a minimum qualification (e.g. as a lawyer or auditor) is required for the secretary. The minimum capital of the Ltd. is one British pound sterling (GBP) which the PLC receives £ 50,000.
United States of America
- Thomas Raiser , Rüdiger Veil : Law of corporations. A manual for practice and science. Stock corporation, partnership limited by shares, limited liability company, corporation & Co., conversion law, group law, international company law. 4th, revised edition. Vahlen, Munich 2006, ISBN 3-8006-3250-0 .
- New limit values for size class assignment , July 10, 2015.
- von der Corne, Hans Caspar: On the way to a right of the public company
- See for an example: Schäfer, NJW 2008, pp. 2536 ff: the German stock corporation is primarily designed as a “public company”.
- Gerhard Köbler, Legal Dictionary , 12th edition, Verlag Vahlen.
- Art. 727 Code of Obligations
- Federal Statistical Office, August 4, 2009: "Macroeconomic and sectoral non-financial balance sheets"
- David Dampshire (Ed.), Living and Working in New Zealand , 4th Edition, Survival Books London (2008) pp. 32f.
- Author collective, Private Limited Company , Memento Verlag Freiburg i. B. (2005) pp. 2-5.