The term legal form is used in the law ( 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 Paragraph 1 and Paragraph 1 HGB. In the case of corporations , on the other hand, the legal form is already part of the minimum content ( (3) AktG, ).
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; (2 ) VAG ), for private building societies (AG; (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 (e.g. KAGB). According to Abs. 1 KWG , only the legal form of sole trader is excluded for credit institutions within the meaning of Abs. 1 KWG , all other legal forms are permitted (OHG and KG call themselves " Privatbankiers ", AG and KGaA "Aktienbanken"). According to 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.
- In private law there are partnerships and corporations. The partnerships include association , GbR , OHG , KG , partnership and EWIV . Corporations are the AG , KGaA , GmbH and SE .
- The public law knows owned companies (the most primitive form of government), municipal enterprises (legal form is governed by the Own Plant Operation Regulation), public institutions , public bodies and public foundation . Unlike the legal forms of private law, they are not founded by a partnership agreement, but by virtue of the law or the articles of association .
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 ( (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 ( (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 ( UmwG); according to (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 (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.
The following legal forms are regulated at the level of the European Union and can be used in all EU countries:
- European Economic Interest (EEIG) ( )
- Legal person under private law :
- Legal person under public law :
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 :
- Non-registered association ( BGB)
- Civil law society (GbR) ( BGB)
- Open trading company (OHG) ( HGB), including OHG mbH , GmbH & Co. OHG and AG & Co. OHG
Partnership company (PartG) ( PartGG)
- Partnership with limited professional liability (PartG mbB) ( PartGG)
- Partner shipping company ( HGB)
- Limited partnership (KG) ( HGB), including GmbH & Co. KG , UG (limited liability) & Co. KG , AG & Co. KG , KGaA & Co. KG and Stiftung & Co. KG
Legal person under private law :
- Registered association (e.V.) ( BGB)
- Economic association ( BGB)
- Mutual Insurance Association (VVaG) ( VAG)
- Limited liability company (GmbH) ( GmbHG), including:
- Limited partnership based on shares (KGaA) ( AktG), including GmbH & Co. KGaA , AG & Co. KGaA and Stiftung & Co. KGaA
- Aktiengesellschaft (AG) ( Paragraph 1 Clause 1 AktG), including:
- Registered cooperative (eG) ( (1) GenG)
- Foundation under private law ( BGB)
- Old legal association
- Legal person under old Hamburg law (ownerless, today only HASPA Finanzholding is organized in this way)
Legal person under public law :
Public corporation (KdöR), including:
- Local authorities (federal government, states, districts, municipalities)
- Special purpose associations
- Real entities ( water and soil associations , hunting cooperatives , fishing cooperatives , participating communities )
- Social security agencies
- (state) universities
- Professional bodies (chambers)
- Religious under public law ( GG in conjunction with Art. 137 (5) WRV)
- Forest management associations ( BWaldG)
- Pilot Brotherhoods
- Germany radio
- Public law institution (AdöR), including:
- Foundation under public law
- Public corporation (KdöR), including:
- Churches have a special status in Germany. The institutionalized churches, according to GG in conjunction with Art. 137 para. 5 Weimar Constitution organized as public corporations, but because of the separation of church and state is not the hierarchy secular bodies belong, but an autonomous canonical own status. As a result, the church bodies evade public law and thus the state supervision under administrative law .
Legal forms that were still active in the 20th century (today transferred) should also be mentioned:
- Colonial society according to German protected area law
- Mining trade union under Prussian or German law
The following legal forms exist in Austria :
- One-man business:
- Sole proprietorship
- registered sole proprietorship (eU)
- Society under civil law (GesnbR, GesbR, GbR) (§§ 1175 ff. ABGB )
- Open company (OG) (Sections 105–160 UGB )
- Limited partnership (KG, GmbH & Co KG, AG & Co KG) (§§ 161–177 UGB)
- Silent society ( StG , has no legal form abbreviation as it does not appear publicly) (Sections 178–188 UGB)
- Open trading company (OHG, until December 31, 2006)
- Open acquisition company (OEG, until December 31, 2006)
- Limited partnership (KEG, until December 31, 2006)
- Legal person under private law:
- Stock corporation (AG)
- Limited liability company (GesmbH, GmbH)
- Foundation according to the Federal Foundation and Fund Act (always non-profit by law)
- Foundation according to one of the 9 state foundation and fund laws (always non-profit by law)
- Private foundation (almost exclusively self-serving, only a small percentage is non-profit)
- Legal person under public law:
- 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 :
- Microentreprise (small business status for individuals)
- Société civile (SC) - partnership
- Société civile immobilière (SCI) - real estate holding company (for tax reasons this is a frequent special case of an SC)
- Société en nom collectif (SNC) - trading company
- Société civile professional (SCP) - partnership (for liberal professions)
- Société anonyme (SA) - public company
- Société par actions simplifiée (SAS) - simplified joint-stock company (not marketable)
- Société à responsabilité limitée (Sàrl) - limited liability company
- Entreprise unipersonnelle à responsabilité limitée (EURL) - one-person company with limited liability ("Einmann-GmbH")
- Société en Commandite par Actions (SCA), the French counterpart to the German partnership limited by shares ( KGaA )
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 :
- Ūkinė bendrija (ŪB) - trading company
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|
|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:
- Stock corporation ( ff. OR)
- Limited partnership ( ff. OR)
- Limited liability company ( ff. OR)
- Investment company for collective investment schemes ( CISA)
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.
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 .
The following companies are subject to other areas of 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.
|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)|
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