Collegial body
Under a collective body is understood in the organization of legal an organ within a legal person or group of persons , consisting of at least two organ trustees is. The opposite is the single organ consisting of only one person .
General
Collegial bodies are plural organizational units established by legal norms with decision-making authority. Organizations such as companies , associations , authorities , states or parties have collegial bodies prescribed by statute (private law) , public statute or rules of procedure , which have to fulfill certain tasks . These tasks are specifically carried out within the collegial body by at least two natural persons - the so-called governors. Actions of the body are direct actions of the legal person, but not a case of legal representation .
Collegial bodies in legal entities ( companies , associations , institutions and corporations under public law ) are the management board , management , supervisory board , administrative board , shareholders' meeting or general meeting , works and staff council or administrative advisory board . Parliaments , governments ( federal government , state governments or local councils ) or cabinets function as state collegiate bodies . The Federal Government consists of the Federal Chancellor and the Federal Ministers and, like the state governments, is a collegial body. The character of the federal government as a collegial body is, however, restricted by the chancellor's authority to issue guidelines and the departmental principle . In the case of parties, there is a party executive and a party congress as collegial organs . Organized as a public institution of public broadcasting has as a college next to the Board of Directors a Broadcasting Council . In the case of residential property , section 23 (1) of the WEG provides for the homeowners' meeting and section 29 of the WEG for the administrative advisory board as a collegial body.
species
From a legal point of view, collegial bodies can be subdivided according to position , competence , function , powers of the members , bound by instructions and number of members . A direct position as an organ results from the constitution or other legal norms (e.g. Federal Council , Art. 50 GG), while indirect organs derive their position from an order addressed to them . According to competence, a distinction is made between collegial organs of the legislature (such as the Bundestag , Article 38.1 of the Basic Law), the executive (such as the Federal Government , Article 62 , Article 69 of the Basic Law, state governments or local councils ) and the judiciary ( senates at courts , collegiate courts ). As a rule, the authority of an organ consists of voting rights , although some chairpersons sometimes lack voting rights. If board members are independent of the instructions of others, they are non-instructional members, as in the Bundestag. However, members who are bound by instructions cannot vote autonomously. This includes the Federal Council, whose members are appointed and recalled by the state governments ( Art. 52 (1) GG); it is the will of the federal state that counts when casting votes.
poll
Within the collective body consists for organ Walter the principle of collective , so that within the college normally no hierarchy exists. Collegial bodies decide by resolution. A legal norm must regulate how several administrators can form an opinion as a collegiate body. Once the quorum has been established , the simple majority of the votes cast usually decides on a specific item on the agenda .
D&O liability
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 regulations ( 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 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 Bundesgerichtshof (BGH) in July 2004 that the two board members of Infomatec the shareholders of the Company by a knowingly false Ad hoc announcement with inflated information on new orders from customers deceived had and therefore damages had to pay. 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 harms a third party directly through active action and the requirements of Section 823 (1) BGB are met, a personal liability arises for this.
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.
In criminal law, organ liability deals with the question of whether criminal offenses in the company represented can also be attributed to the organ administrator . The perpetrator must act as an organ. After § 14 para. 1 of the Criminal Code, the criminal liability of the company passed on its incumbents. Section 14, Paragraph 1, No. 1 of the Criminal Code, which deals with corporate liability under criminal law, also assumes that every member of the management remains the addressee of the company's duties.
International
Internationally, collegiate bodies are usually organized in the same way as in Germany. Examples of international collegiate bodies are the arbitration tribunals of the Permanent Court of Arbitration or the International Court of Justice (both in The Hague ). The UN General Assembly , the Security Council of the United Nations , the European Parliament and the European Commission are also of great global political importance . The members of the Council of the European Union ( Art. 237 ff. AUEV) are bound by instructions; they are bound by the instructions of their home government. In France , the Council of Ministers is the only collegiate body provided for in the constitution .
See also
Individual evidence
- ↑ Carmen Thiele, Rules and Procedures for Decision-Making Within States and State Associations , 2008, p. 599
- ↑ Everhard Holtmann, Politik-Lexikon , 2000, p. 293
- ↑ Everhard Holtmann, Politik-Lexikon , 2000, p. 80
- ↑ Carmen Thiele, Rules and Procedures for Decision-Making Within States and State Associations , 2008, p. 142 f.
- ↑ Carmen Thiele, Rules and Procedures for Decision-Making Within States and State Associations , 2008, p. 148
- ↑ Carmen Thiele, Rules and Procedures for Decision-Making Within States and State Associations , 2008, p. 151
- ↑ Jürgen Ellenberger , in: Otto Palandt , Commentary BGB , 73rd edition, 2014, § 31 Rn. 3
- ↑ Jürgen Ellenberger, in: Otto Palandt, Commentary BGB , 73rd edition, 2014, § 31 Rn. 6th
- ↑ Stefan Martin Schmitt, D&O insurance and D&O insurance , 2007, p. 20
- ↑ BGH, judgment of July 19, 2004, Az .: II ZR 218/03
- ↑ Stefan Martin Schmitt, D&O insurance and D&O insurance , 2007, p. 23
- ↑ Rolf Remus, Commission and Council in the Decision-Making Process of the EEC , 1969, p. 47
