legal form

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The legal form is by law compulsory legal framework of companies , some legally prescribed structural features associated with and participate with the companies in the economy.


The term legal form is used in the law ( Section 125a of the Commercial Code (HGB), very often in the Transformation Act UmwG), but there is no legal definition . With a legal form, the law combines nationally and internationally different basic structures with regard to certain forms of membership and liability. A closed catalog of legal forms is available ( mandatory type ), which cannot be expanded at will. It is therefore not possible to construct a new legal form and appear on the market with it. However, the law offers scope for individual design of the legally prescribed basic structures. This leeway allows mixed forms (such as the GmbH & Co. KG or the AG & Co. KGaA ). As early as January 1986, the European Court of Justice (ECJ) granted the option of freely choosing the appropriate legal form for carrying out activities in another member state. In September 2003, finally, the ECJ ruled that in an EU Member State legal status, founded in another EU country must be recognized if they get their seat moved. Foreign legal forms can only be transferred to Germany and vice versa by relocating the registered office.

The minimum content of the articles of association does not include the agreement on the legal form of OHG, KG or BGB company. This follows from the legal form requirement for partnerships according to Section 105 Paragraph 1 and Section 161 Paragraph 1 HGB. In the case of corporations , on the other hand, the legal form is already part of the minimum content ( Section 23 (3) AktG, Section 3 ).

Choice of legal form

Who a company is based , must first decide on a legal form. The choice of legal form is a typical business management decision problem because the different characteristics of individual legal forms can have far-reaching business management consequences. The choice of the legal form affects membership and liability law as well as tax considerations. These include the liability of the shareholders and their right to management , company size , capital needs , marketability , admission of new co-partner , accounting , disclosure obligations , co-determination - (excluded in OHG and KG) Group - (AG and SE as a European holding company ) or trade law issues as Decision criteria. While with partnerships least one partner with his entire private assets for the liabilities of the Company shall be liable (except & Co. KG GmbH ), the liability for corporations limited (eg to the respective contributions of the shareholders.). If a natural person does business, they are liable with their entire assets. However, one-person GmbHs can also be founded in which one partner owns all shares.

For reasons of legal certainty and the protection of creditors, there is a closed catalog of possible legal forms in the individual states from which the founder can choose one. The legal forms provided by law have a legal framework to which a founder must orient himself when drawing up the articles of association (legal form requirement).

However, this choice of legal form is restricted by law for certain business activities. A certain legal form is prescribed for insurance companies (only in the legal form of AG, VvAG, SE or institutions under public law and corporations under public law; Section 8 (2 ) VAG ), for private building societies (AG; Section 2 (1) BauSparkG) ; In the case of Pfandbrief banks , the previously restrictive requirement of a permissible legal form (AG and KGaA for mortgage banks ) was no longer necessary. Investment companies may only be managed in the legal form permitted by the Investment Code (e.g. sections 18, 140 and 149 KAGB). According to § 2a Abs. 1 KWG , only the legal form of sole trader is excluded for credit institutions within the meaning of § 1 Abs. 1 KWG , all other legal forms are permitted (OHG and KG call themselves " Privatbankiers ", AG and KGaA "Aktienbanken"). According to § 340a HGB, however, all credit institutions, even if they are not operated in the legal form of an AG, must prepare their annual financial statements in accordance with the regulations for large corporations.


In Germany, 14 legal forms (without mixed forms) are permitted. Every amalgamation of natural persons to form a company triggers a decision about their legal form. In Germany and internationally is generally between legal forms of private law ( private law ) and public legal forms ( public law ) distinction.

Change of legal form

Once the legal form has been chosen, it does not have to be retained permanently. A distinction is made between the change in legal form by virtue of the law and the conversion .

  • By law there are the following changes in legal form:
    • A BGB company becomes an OHG by law as soon as it begins a commercial trade ( Section 105 (1) HGB), conversely, OHG and KG become a BGB society when they give up their trade.
    • The OHG becomes a KG if a limitation of liability is entered for at least one partner ( Section 161 (1) HGB), conversely the KG becomes an OHG if the only limited partner leaves and at least two partners with unlimited liability continue the company.
  • Change of legal form according to the Transformation Act:
Existing companies of a certain legal form can subsequently change them within the framework of the Transformation Act. In this respect, the conversion represents a change of legal form, which is part of the conversion without transfer of assets. The legal entities in question continue to exist while preserving their identity ( Sections 190 to 304 UmwG); according to Section 190 (1) UmwG , a legal entity can change its legal form by changing the legal form. The transformation law provides for a strict change of legal form; according to Section 258 (1) UmwG, the registered cooperative may only acquire the legal form of a corporation.

International legal forms

The legal systems of other countries also have legal forms in which the companies located there can be run. In some cases, foreign legal forms are similar to German ones, but there are also considerable deviations. In Austria and Switzerland the legal forms are very similar to the German ones. The most common legal form in Great Britain is the Limited , of which there are subtypes of the Private Limited Company by Shares (Ltd.) , which is very similar to the GmbH, and the Public Limited Company (plc), which is similar to the AG . Sole proprietorship is called Sole Proprietorship , OHGs are called Partnership . In the USA, the most common legal form is the sole proprietorship corresponding to the sole proprietorship , followed by the limited partnership and the limited liability company (LLC) as a counterpart to the GmbH and the corporation (Corp.) as an AG.


European Union

The following legal forms are regulated at the level of the European Union and can be used in all EU countries:


In 2012, according to the Federal Statistical Office , the share of corporations in all legal forms was 16.4% (96% GmbH, 1.5% AG), partnerships 13.0% (48.2% BGB-Gesellschaft, 30 , 9% GmbH & Co. KG).

In Germany, there are the following legal forms, some of which differ greatly in terms of their regulations on foundation and management :

Trade unions and political parties are a special form of legal person if they are not registered associations. They are still considered legally competent.

Legal forms that were still active in the 20th century (today transferred) should also be mentioned:


The following legal forms exist in Austria :

  • Non-legal entities (examples)
    • Associations of persons
    • Associations with no legal capacity (not entered in the association register, but organized and continuing like associations)
    • Company workforces (e.g. operated factory kitchen or employee representation, but no works council fund)
These entities can be considered as corporate tax subjects.

The following legal forms exist in France :


The following legal forms exist in Spain :

  • The equivalent to the stock corporation is called “Sociedad Anónima” (SA) with a minimum capital of 60,000 euros.
  • The Spanish equivalent of the limited liability company (GmbH) is called “Sociedad Limitada” (SL) . Minimum capital 3,000 euros
  • The Spanish (GbR) company under civil law is called "Sociedad Civil" .
  • A sole proprietorship operates under "Empresario individual" .

The following legal forms exist in Italy :

  • The most common type of company in Italy is probably the limited liability company (GmbH), in Italian società a responsabilità limitata (srl) . The establishment takes place in front of a notary, the minimum capital is 10,000 €.
  • Other forms of company can be the general partnership (OHG), Italian società in nome collettivo (snc) or the limited partnership (KG), Italian società in accomandita semplice (sas) .
  • Sole proprietorship ( ditta individuale ) describes the type of company that is typically carried out by a businessman, craftsman, farmer or freelancer.

The following legal forms exist in Lithuania :

United Kingdom

The UK has the following legal forms:


The following legal forms exist in Russia: On September 1, 2014, the OAO and SAO were abolished.

legal form Obshchestvo s ogranichennoi otvetstvennostju Otkrytoye akzionernoe obschtschestvo Sakrytoye akzionernoye obshchestvo Publichnoye Akzionernoye Obschtschestvo Nepublichnoe akzionernoye obschestvo
Russian Общество с ограниченной ответственностью Открытое акционерное общество Закрытое акционерное общество Публичное акционерное общество Непубличное акционерное общество
abbreviation OOO OAO SAO PAO NAO
Correspondence German company with limited liability German open stock corporation dt. closed stock corporation
engl. Closed Joint Stock Company (CJSC)
German public corporation
engl. Public Joint Stock Company (PJSC)
German non-public stock corporation
properties (abolished) less than 50 shareholders, is
similar in importance to the GmbH



In Switzerland there are the following legal forms in private law:



In China, as in Germany, there is a general separation between partnerships such as the ordinary partnership and corporations. Equity joint venture has been the most common type of foreign investment in China for over 20 years. Equity joint ventures are corporations whose legal form resembles a German GmbH. At least one Chinese and one foreign partner contribute financial, material or immaterial resources to the joint venture. The company must also pursue a set corporate objective that is to be approved by the authorities. In contrast to the representative office variant, which requires significantly less capital, an equity joint venture has more rights. The company is allowed to buy land use rights, independently hire Chinese staff, build buildings, etc.


In Japan, in addition to the Kabushiki kaisha (joint stock company), the Gōdō kaisha (hybrid company), the Yūgen Sekinin Jigyō Kumiai (Japanese version of a limited liability partnership ) and the Gōshi-gaisha (limited partnership), there is also the Sōgo-gaisha (mutual company) for Insurance company. The Yūgen-gaisha , which was created in 1940 based on the model of the German GmbH, have not been able to be founded since 2006. The regulations regarding stock corporations are applied to existing GmbHs.


South Africa

The Companies Act of 1973 provides for the Share Capital legal forms of the Public Company (Ltd.) and the Private Company (PTY) Ltd. in South Africa . (with up to 50 shareholders ), in which only the company's assets are liable, and all other forms of company with fully liable partners ( Close Corporation , CC), partnership and trust .


In Namibia there is in corporate law ( English Companies Act of 1973, 2004 and 2007) in principle, the distinction between public ( public ) and private ( private ) companies:

The following companies are subject to other areas of law:


United States

see United States corporate law

International comparison of legal forms

Important German legal forms of OHG, KG, GmbH and AG can be compared in their basic structures with international legal forms.

Legal form
in Germany
Liechtenstein General partnership / open company KG GmbH / Ges.mbH AG
Austria 1st floor KG GesmbH / GmbH AG
Switzerland General partnership (KLG) KMG GmbH AG
France Société en Nom Collectif (SNC) Société en Commandite Simple (SCS) Société à Responsibilité Limitée (SARL) Société Anonyme (SA)
Netherlands Vennootschap on the company (VOF) Commanditaire Vennootschap (CV) Besloten Vennootschap met beperkte Aansprakelijkheit (BV) Naamloze Vennootschap (NV)
Italy Società in Nome Collettivo (snc) Società in Acommandita Semplice (sas) Società a Respondabilità Limitata (srl) Società per Azioni (SpA)
Spain Sociedad Regular Colectiva (SRC) Sociedad Comanditaria (SC) Sociedad de Responsabilidad Limitada (SRL) Sociedad Anonima (SA)
Portugal Sociedade em nome colectivo (SNC) Sociedade em comandita (SC) Sociedade por quotas de responsibilidade limitada (SRL / Ltda.) Sociedade anónima (SA)
Great Britain Partnership Limited Partnership (Ltd.) Private Company Limited By Shares (Ltd.) Public Company Limited By Shares (plc)
Sweden Handelsbolag (HB) Limited partnership (KB) there is no GmbH Aktiebolag (AB)
United States General Partnership (GP) Limited Partnership (LP) Limited Liability Company (LLC) Corporation (Corp., Inc.)
People's Republic of China (Ordinary) partnership company (普通 合伙 企业) Limited partnership company (有限 合伙 企业) GmbH (有限 责任 公司) AG (股份有限公司)

See also


  • Friedrich Klein-Blenkers: Legal forms of the company. CF Müller, Heidelberg 2009.
  • Günter Wöhe, Ulrich Döring: Introduction to general business administration . 24th edition, Munich 2010.

Web links

Wiktionary: legal form  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ECJ, judgment of January 28, 1986, Az: C-270/83
  2. ECJ, judgment of September 30, 2003, Az: C 167/01 = ECJ NJW 2003, 3331: Inspire Art
  3. BGHZ 10, 91, 97
  4. ^ Willi Albers: Concise Dictionary of Economics (HdWW) . Vandenhoeck & Ruprecht, 1980, ISBN 978-3-525-10257-2 , pp. 71 ( limited preview in Google Book search).
  5. ^ Friedrich Klein-Blenkers: Legal forms of the company . Hüthig Jehle Rehm, 2009, ISBN 978-3-8114-3263-5 , p. 25 ( limited preview in Google Book search).
  6. BT-Drucksache 15/4321 of November 29, 2004, draft law for the reorganization of Pfandbrief law , p. 27
  7. Roland Heuermann: Public Business Administration . Oldenbourg, 2010, ISBN 978-3-486-59708-0 , pp. 38 ( limited preview in Google Book search).
  8. ^ A b Hans-Christoph Maulbetsch (Ed.): Transformation Act . CF Müller, Heidelberg 2009, p. 897 ( limited preview in Google Book search).
  9. BGHZ, 68, 12
  10. ^ Marion Steven: Business Administration for Engineers . Oldenbourg, 2011, ISBN 978-3-486-70686-4 , pp. 39 ( limited preview in Google Book search).
  11. Federal Statistical Office, sales tax statistics 2012
  12. ↑ Types of companies in Italy | italy inside. Retrieved August 6, 2018 .
  13. Investing in Russia (Part 1A) - Company Forms in Russia , November 3, 2010
  14. Что такое ОАО и ЗАО и почему их упразднили в России? In: September 5, 2014, accessed September 6, 2016 (in Russian).
  15. Ekaterina Dedova: B2B: New Classification of Legal Entities. In: The Moscow Times . December 22, 2014, accessed September 6, 2016 .
  16. a b Федеральный закон от 5 мая 2014 г. N-99 ФЗ "О внесении изменений в главу 4 части первой Гражданского кодекса Российской Федерации и о признании утратившими силу отдельных положений законодательных актов Российской Федерации " (с изменениями и дополнениями)
  17. Market entry / legal forms and purchasing in China. (No longer available online.) IHK Frankfurt am Main, archived from the original on June 30, 2012 ; Retrieved November 12, 2012 .
  18. Birgit Zinzius: China Business . 2nd Edition. Springer, Berlin / Heidelberg / New York 2006, ISBN 978-3-540-23497-5 , pp. 39 .
  19. ^ Equity joint venture fact sheet. (PDF; 108 kB) (No longer available online.) US-China Business Council, formerly in the original ; Retrieved November 12, 2012 .  ( Page no longer available , search in web archivesInfo: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice.@1@ 2Template: Dead Link /  
  20. ↑ Forms of business in Japan. Laws & Regulations - Starting Business in Japan - JETRO. Japan External Trade Organization, accessed November 10, 2012 .
  21. SAICA: Companies Act, No. 61 of 1973 ( memento of April 24, 2017 in the Internet Archive ). on (English)
  22. Werksmans Attorneys: Companies Act No. 71 of 2008. An Implementation Guide . at (English), PDF document p. 4
  23. ^ Marion Steven: Business Administration for Engineers . Oldenbourg, 2011, ISBN 978-3-486-70686-4 , pp. 40 ( limited preview in Google Book search).
  24. the Limited Liability Partnership (LLP) corresponds to the GmbH & Co. KG