Legal capacity (Liechtenstein)

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The legal capacity in Liechtenstein is the ability to be self-bearer of rights and obligations. Every natural person , regardless of age and state of mind, has this quality . i.e. everyone is legally capable. For example, a two-month-old baby can also be an heir and thus have legal capacity. Legal capacity is the basis for becoming a bearer of rights and obligations (e.g. capacity to act, legal capacity, testability, etc.).

Principles for all persons

According to Liechtenstein law, everyone has the ability to acquire rights under the conditions prescribed by law . Every human being has innate rights that are already evident through reason. He is therefore to be regarded as a person. Permitted companies ( legal persons , the ABGB uses the broader term moral persons ) generally have the same rights as natural persons in relation to third parties.

For a foreigner , legal capacity is based on his personal statute . However, the foreigner's innate rights, "which are already evident through reason," cannot be denied, even if the foreigner's personal status provides otherwise. This is reinforced and confirmed by Art 9 PGR:

“Everyone is legally competent. Accordingly, all people (natural persons) have the same ability within the limits of the legal system to have rights and obligations under private law. "

- Art. 9 para. 1, para. 2 PGR

In accordance with Art. 16 ABGB , Art. 9 Para. 3 PGR also stipulates:

"This provision is also mandatory under international law."

Beginning and end of legal capacity

Natural person

The unrestricted legal capacity of natural persons begins with the completed birth . The completed natural or artificial separation of the child from the womb represents this point in time. Legal capacity occurs as soon as the child has given a sign of life, regardless of whether it is later viable or not. If it is disputed whether a live birth has occurred, in case of doubt it is assumed that a child was born alive. This legal presumption has effects on questions of inheritance law, among other things, because only a live-born child is inheritable. However, even the unborn child has limited legal capacity. Under the condition of the subsequent live birth, it is a legal subject insofar as this is to its advantage. Every birth has to be registered and a birth certificate has to be issued.

Human legal capacity ends with death .

Animals

The Liechtenstein Property Law (SR) provides: " Animals are not things " (Art 20a Paragraph 1 SR). " Insofar as there are no special regulations for animals, the regulations applicable to things apply to them " (Art 20a Paragraph 2 SR).

The addition of Art 20a has resulted in "no normative change to the old legal situation in legal terms for animals, even if they are conceptually (formally) no longer a thing". Animals therefore have an unknown intermediate position between person and thing, but in any case no legal capacity. In this regard, you are sometimes worse off than z. B. Legal entities.

Moral persons / legal persons / partnerships

inland

Domestic moral or legal persons or certain partnerships and communities acquire legal capacity in the normal case with the entry in the Liechtenstein commercial register . Under certain circumstances, there may be exceptions to public corporations, institutions , foundations and associations . With the granting of legal capacity, moral or legal persons or certain partnerships and communities become legal subjects and can become bearers of rights and obligations.

With the deletion from the commercial register, the legal capacity of the legal person ends accordingly, provided that an entry was previously constitutive. Under certain circumstances, not until the final settlement ( liquidation ).

The recognition of the legal capacity and party capacity of legal persons from Liechtenstein abroad is still not fully given. This is due, among other things, to:

  • Liechtenstein's non-participation in bilateral or multilateral jurisdiction and / or enforcement agreements such as B. the Lugano Convention,
  • the use and design of corporate forms that have no equivalent abroad (e.g. the establishment of private law , trust companies , trusts under Liechtenstein law, etc.) and
  • the use of Liechtenstein companies, in particular the Liechtenstein Foundation and institutions under private law, for the purposes of tax evasion, tax avoidance and reduction of the compulsory portion.

With Liechtenstein's accession to the European Economic Area (EEA), the expiry of the transition period for freedom of establishment on January 1, 1998, and the Daily Mail , Centros , Überseering and Inspire Art judgments and others, the situation was somewhat eased and Liechtenstein companies were recognized as legal entities improved and established, but in particular every judgment from Germany with which legal entities are recognized or not under Liechtenstein law is analyzed and commented on. Switzerland, which is not a member of the European Union or the EEA, is in a similar situation.

With the decision IV ZB 9/14 of the Federal Court of Justice of December 3, 2014, it was fundamentally determined in this regard that the legal capacity of legal persons as bearers of rights and obligations is based on the personal status of the country in which this legal person was founded (specifically Case this referred to Liechtenstein and an institution under private law).

foreign countries

The legal capacity and party capacity of legal persons from abroad has been widely recognized in Liechtenstein for decades - see e.g. B. Art 232-239, 676 f, 833, 931, 1032 PGR ; § 6 TrUG . The legal capacity of foreign companies in Liechtenstein is based in principle and with exceptions on the company statute to which the foreign company is subject.

literature

Individual evidence

  1. ↑ § 18 ABGB
  2. ↑ § 16 ABGB.
  3. ↑ § 26 ABGB.
  4. ↑ The provision is taken from the Swiss Civil Code , Art. 11 Para. 1. Likewise, the subsequent provision of Art. 9 Paragraph 2 PGR from Art. 11 Paragraph 2 ZGB.
  5. ↑ The provision of the Liechtenstein ABGB was adopted ( received ) from the Austrian ABGB in 1811 .
  6. ^ Antonius Opilio in a working commentary on Liechtenstein property law. Margin no. 8 to Art 20a SR.
  7. ↑ For the legal nature of the legal person and their legal capacity, see the theoretical controversy in jurisprudence : fiction theory and reality theory .
  8. ↑ For example, violation of public policy according to § 6 EGBGB. See also BGH in III ZR 117/72; V ZR 81/77 on the refusal to recognize the existence of a legal person established under foreign law.
  9. ↑ European Court of Justice: Judgment of the Court of Justice of 9 March 1999 in Case C-212/97 regarding a request submitted to the Court of Justice under Article 177 of the EC Treaty of Højesteret (Denmark) in the pending litigation Centros Ltd v Erhvervs- og Selskabsstyrelsen for a preliminary ruling on the interpretation of Articles 52, 56 and 58 of the EC Treaty . In: Collection of case law . 1999, p. I-1484-1498 ( online , accessed February 21, 2015 ).
  10. ↑ European Court of Justice: Judgment of the Court of Justice of 5 November 2002 in Case C-208/00 (request for a preliminary ruling from the Federal Court of Justice): Überseering BV v Nordic Construction Company Baumanagement GmbH (NCC) . In: Official Journal of the European Communities . C 323, December 21, 2002, p. 12–13 ( online , accessed February 21, 2015 ).
  11. ↑ Court of Justice: judgment of 30 September 2003 in Case C-167/01 (reference for a preliminary ruling from the Kantongerecht): Kamer van Koophandel en Fabrieken voor Amsterdam to Inspire Art Ltd . In: Official Journal of the European Communities . C 275, November 15, 2003, p. 10–11 ( online , accessed February 21, 2015 ).
  12. ↑ See e.g. B. BGH in II ZR 158/06, judgment of October 27, 2008, in which the relocation of the seat of a Swiss company to Germany is not approximated to companies from the EU area or the EEA and is regarded as inadmissible. The seat theory continues to apply in the relationship between Switzerland and Germany . Companies under Swiss law are to be assessed as general partnerships or companies under civil law in Germany , whereby the shareholders of a legal person under Swiss law are personally liable.
  13. ↑ See decision IV ZB 9/14 of the BGH of December 3, 2014, margin no. 66.