Legal persons and associations of persons are legal subjects on an equal footing with natural persons , but cannot participate in legal transactions as such . A legal system that provides legal persons must provide a mechanism that gives them the capacity to act . For this reason, natural persons who are entrusted with the representation of the legal person and association in external relationships are required to establish the capacity to act ( organ administrators ). These administrators belong to an organ established by virtue of the law , statutes under private or public law or other legal norms . The body can be a single body or a collegial body , depending on whether one or more governors work for the body. Most organizations have at least two organs that share different tasks .
The company law and public law divides the bodies of legal persons then on whether it with the management of the company ( board , management, management ), their control ( Supervisory Board , Board of Directors , Advisory Board ) or the exercise of shareholders' interests ( general meeting , shareholders meeting , general meeting entrusted) are.
Organs of legal persons under private law
Legal entities under private law (registered association and the corporations based on it , foundation ) act externally through a foundation body (usually the foundation's board of directors) or through persons authorized by foundation bodies (managing directors). Actions of the body are direct actions of the legal person, not a case of legal representation . Because the legal person can only act through its organs, it is liable for their actions towards injured third parties (see for example BGB ).
According to German law, the legally responsible association within the meaning of the German Civil Code has at least two organs: the board of directors ( statutes .BGB) and the general assembly. The association can provide for further organs in its
There may also be organs that are not called to act externally ( shareholders' meeting ). The stock corporation has three organs, namely the board of directors entrusted with the management of the company , the supervisory board with monitoring obligations and the general meeting which decides on certain stock corporation law matters .
Organs of legal persons under public law
The state as such cannot act like any legal person; for this he needs organs, called state organs . The highest state organs are also called constitutional organs . The following constitutional bodies exist at the federal level in Germany :
- Bundestag ( ff. GG)
- Federal Council ( ff. GG)
- Joint committee (emergency parliament) ( ff. GG)
- Federal Assembly ( ff. GG)
- Federal President ( ff. GG)
- Federal Government ( ff. GG)
- Federal Chancellor ( Basic Law)
- Federal Constitutional Court ( ff. GG)
These state organs can also have organs themselves. For example, a committee of inquiry is referred to as an organ of the respective parliament.
The organ of a subordinate body is called an authority or office , provided that administrative decisions are made by them. A distinction must be made between the respective organ and the person who is active in it (organ administrator). Sometimes organs can also act on behalf of other sovereigns ( organ lending ).
If there is a divergent opinion between the individual organs (without the BVerfG) with regard to the constitutional rights of an organ, the Federal Constitutional Court can be invoked in a so-called organ dispute procedure . The federal states have their own statehood and therefore also state organs. At the state level there are regularly the highest organs of the state parliament , state government and state constitutional court . The state constitutions also know organ dispute procedures.
Indirect state administration
The independent administrative bodies ( self-administration ) created by the state are also legal persons ( corporation under public law , foundation under public law and institution under public law ) and must therefore have organs. So act according to the municipal law as for the community of the mayor and the council .
Legal entities under public law are also liable for damage caused by their organs to third parties. In German law, a distinction must be made here: tax authority . By contrast, they are liable for public law actions of their bodies according to the rules of official liability .(1) BGB refers to BGB. However, this only includes the liability for private law actions of the organs, as can already be seen from the
Religious and ideological communities
The organs of religious societies under public law are determined by internal church law , which such communities can enact by virtue of the right of self-determination (cf. church constitution , church congregation leadership ).
Bodies under international law
Bodies under international law are the persons authorized to represent a state vis-à-vis other subjects of international law (states or international organizations ), i.e. the head of state , the government , the diplomats and the consuls .
According to German Civil Code , the association is liable for damage caused to a third party by a member of the board of directors or another constitutionally appointed representative by an act that is liable to compensate him or her in the performance of his duties. This provision does not only apply to associations, but to all legal persons and legal persons under public law ( (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 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 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 the - insolvent - Infomatec the shareholders of the Company by a knowingly false hoc announcement Ad with inflated orders from customers deceived had and therefore damages had to pay. However, board member liability is excluded if there is no breach of duty ( (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 (1) of the German Civil Code (BGB), a personal liability arises. The shareholders of the OHG are standard addressees of Paragraphs 1 and 2 of the German Commercial Code ( HGB) ; they are liable to the company within the framework of executive body liability and to its creditors in accordance with Section 823 Paragraph 2 of the BGB .
The official liability (liability of the local authorities ) is the financial liability of the state for damages that an organ administrator in the jurisdiction or the sovereign administration has caused an outside legal entity unlawfully and culpably. This liability initially applies to the civil servant himself ( (1) BGB), but according to sentence 1 GG, the state takes over the civil servant with discharging effect and is solely liable in external relations. The officers' liability is concerned criminally with the question of whether criminal offenses are also attributable to their incumbents in the represented company. The perpetrator then has to act as an organ. According to Paragraph 1 of the Criminal Code , the company's criminal responsibility is also passed on to its administrators. 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.
In former central administrative states ( GDR , Soviet Union ) there were press organs that were colloquially referred to as "state organs" in western states (e.g. New Germany or Pravda ). They were the official print media and expressed state opinion.
- Jan Schürnbrand, Organschaft in the law of private associations , 2007, p. 9 .
- Timo Hebeler / Jan Schulz, Examination Knowledge on Committee of Inquiry Law , in: JuS 2010, pp. 969–974 (969), which is important for the jurisdiction of complaints with the authority of the association (of an administrative body).
- 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 19 July 2004 - II ZR 218/03
- Stefan Martin Schmitt, D&O insurance and D&O insurance , 2007, p. 23.