Governor
Organ administrators (or members of organs ) are natural persons in organizational law who perceive or exercise the tasks of an organ of legal persons or associations of persons provided for by the legal system .
General
Incumbents are only part of their body functions active . Legal persons or associations of persons are not able to act as such, but only acquire their capacity to act through the administrator. Actions by the governing body directly represent actions of the legal person or association of persons, but are not a case of legal representation . There are three levels to be distinguished:
- Parent company
- organ
- Governor
The controlling company is a legal person or an association of persons. The body itself can be, in particular, the board of directors , management , supervisory board , administrative board , shareholders' meeting or general meeting , works and staff council or administrative advisory board . The organ administrators who work for this assume rights and obligations towards the organizer.
species
Legal norms ( laws , statutes under private or public law , rules of procedure ) either provide for one administrator ( individual body ) or several ( collegial body ) . While the rare individual bodies occur frequently in the public sector ( monarch , state president , minister , single judge ), they only exist in the private sector in one-person companies and smaller associations .
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 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 § 826 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 had to pay damages. 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 directly damages a third party through active action and fulfills the requirements of Section 823 (1) of the German Civil Code (BGB), a personal liability arises. The shareholders of the OHG are standard addressees of Section 130 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 German Civil Code.
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. 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 Section 14, 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.
See also
Individual evidence
- ↑ Georg Jellinek : System of subjective public rights . 1905, p. 30
- ↑ 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: Liability for directors 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
