Under legal succession ( Latin succession ) one understands in jurisprudence the transfer of rights and obligations from one legal subject to another. The transferring legal subject is called the legal predecessor , the legal successor entering into the rights and obligations .
Natural persons and associations of persons such as legal entities , foundations or partnerships can be considered as legal subjects . The existing rights and obligations of these legal entities do not cease with the death of a natural person, the transfer or liquidation of an association of persons, but rather are transferred to another legal entity (the "legal successor") by virtue of the law or contractual agreement. Existing laws do not have a legal definition of the legal term legal succession, although the German Civil Code ( Sections 148 , 746 , 751 , 755 Paragraph 2, 943 , 999 , 1010 , 1059a Paragraph 1, 1100 , 1101 , 1102 , 1179a Paragraph 3 BGB) or the Code of Civil Procedure (§ § 239 , 265 , 266 , 325 , 727 , 799 ZPO) use it frequently. For Friedrich Carl von Savigny , in 1840 the "permanent identity" of a legal relationship was an essential factor in legal succession. In 1906, Bernhard Windscheid saw the legal successor "one subject taking the place of another" and thus came very close to the current definition.
A distinction is made between individual succession ( singular succession ) and universal succession (universal succession ) . The basic case of legal succession is individual legal succession. Their mode of transfer consists in the fact that the transfer of rights relates to a specific object that is transferred from one legal entity to another in compliance with the legal provisions applicable to its transfer. The seller of a property transfers it to another person, e.g. B. sells this in case of doubt with all essential components ( § 946 BGB) and accessories ( § 926 Paragraph 1 Clause 2 BGB). In the case of universal succession, all rights and obligations are transferred as a whole to the successor, regardless of the provisions intended for individual legal succession.
The following subspecies can be distinguished:
Individual succession :
- By virtue of a legal transaction : The will of the contracting parties triggers the transfer of rights. This includes the assignment of claims ( § 398 BGB) and other rights ( § 413 BGB), assumption of debt (§ § 414 , 415 BGB), acquisition of furniture (§ § 929 ff. BGB) and transfer of property (§ § 873 , 925 BGB).
- By law : If certain facts exist, the law requires the transfer of rights . The most important case is the legal subrogation ( Latin cessio legis , § 412 BGB).
- By act of sovereignty : Foreclosure must be mentioned ( compulsory auction of movable property by award according to § 817 para. 2 ZPO, forced auction of real estate and land rights according to § 90 ZVG, registration of compulsory and attached mortgages according to § 867 para. 1 sentence 2, § 932 ZPO).
- There is universal succession in various areas of law :
- Labor law : The most important universal legal succession is the transfer of business regulated in § 613a BGB . The new employer assumes all rights and obligations of the previous employer and in particular takes over all existing employment relationships .
- Inheritance law : the heir is the universal successor of the testator . All legal relationships, including the digital inheritance , assets and debts (except for the highly personal such as employment or marriage) - pass to the heir (s ) upon the death of the testator ( Section 1922, Paragraph 1 BGB).
- Company law : The accrual is the rule according to § 738 BGB. The law requires that the share of departing shareholders in the company's assets increases to the remaining shareholders. If the penultimate partner leaves, the remaining partner takes over the company as a sole proprietorship . The opposite is the real division , which does not represent a universal succession. In the case of a merger of companies , according to Section 2 of the Transformation Act (UmwG), there is a universal succession of the transferring legal entity.
- In commercial law , the transfer of a commercial transaction in accordance with Section 25 of the German Commercial Code (HGB) leads to the liability of the transferee for the obligations of the previous owner arising from the operation of the business .
- The municipal law knows the incorporation (the village A is incorporated into the town B) and the merger of authorities . The taking over municipality / authority becomes the legal successor of the transferring one.
- Tenancy law : If the landlord sells rented living space to a third party, the purchaser, instead of the landlord, assumes the rights and obligations arising from the tenancy for the duration of his property ("Purchase does not break rent"; § 566 BGB).
- In tax law , according to § 45 AO, the claims and debts from the tax obligation are automatically transferred to the legal successor.
- The procedural law provides in § 265 ZPO that one or the other party can sell the matter in dispute or assign the asserted claim without affecting their lis pendens or influencing the court process. The legal successor can start the proceedings to which the disputed legal position has been transferred according to substantive law. According to Section 325 (1) ZPO, a final judgment is effective for and against the parties and the persons who have become the legal successors of the parties after the lis pendens have occurred. This also applies to enforceable copies according to § 727 Paragraph 1 ZPO.
Exceptions to universal succession are, for example, shareholder shares in a partnership (see continuation clause ) and the right of entry in the event of the tenant's death in accordance with Section 563 (2) BGB.
International State Succession
The succession in the state and international law , the state succession , the engagement of a state or several states in international law legal position of another state or more other states. So here, too, it is about the relationship between at least two legal subjects. A distinction must be made between the incorporation ( annexation of Korea by Japan in 1910), the amalgamation of several states into one ( United Arab Republic 1958), the annexation of a part of the state to another state ( Haute-Savoie to France through the Savoy trade in 1860), independence ( Finland 1919), disintegration one state into several states ( collapse of the Soviet Union in 1991 in Russia and the successor states of the former USSR , as well as in Lithuania , Estonia and Latvia ) and the establishment of protectorates , mandates and trust areas . With its accession to the Federal Republic of Germany , the GDR perished as a subject of constitutional and international law with effect from October 3, 1990 and has since participated in the constitutional and international law continuity of Germany in the form of the identity of the Federal Republic.
Differentiation from legal identity
A distinction must be made between legal succession and legal identity. In the former, one legal entity fully enters into the rights and obligations of another legal entity; in the case of the latter, the previous legal entity continues to exist, even if under a different name. Legal identity can appear in civil law as well as in international law. For example, according to German law, a change of legal form according to the Transformation Act (e.g. conversion of a stock corporation into a GmbH ) does not lead to legal succession, but to the continued existence of the previous company, albeit in a new legal form and possibly with a new company ( Section 202 UmwG).
Change of legal entity
The dynamic of everyday life can mean that rights and obligations do not remain forever with the same natural person as the legal entity, but that part of them can be transferred to other legal entities throughout their life (e.g. through purchase contract , assignment , donation ) or in the event of death through inheritance his heirs pass over. This also applies to associations of persons that can transfer parts of its assets to other entities (such as outsourcing , merger , corporate sales ). Legal persons are created for an indefinite period of time, but they can end their legal existence through dissolution or factual demise. Special regulations exist in the event of liquidation or insolvency . With the end of the insolvency proceedings, the former insolvency debtor receives back the administrative and disposal authority that the insolvency administrator was entitled to during the proceedings ( Section 215 (2) InsO). The liquidator himself is at no time the legal successor of the debtor. If an insolvency, compulsory or estate administration ends , the materially entitled person takes over the process of succession. If there is no legal successor, the action will become inadmissible when the legal person dies. If legal persons are deleted from the commercial register after liquidation or insolvency , there is no longer a legal successor; they have ceased to exist.
- Legal succession , keyword in the policy dictionary of the Federal Agency for Civic Education
- ↑ Jan Lieder : The legal succession (= Jus Privatum , Volume 188). Mohr Siebeck, Tübingen 2015, ISBN 978-3-16-152911-5 , p. 20 ff.
- ^ Friedrich Carl von Savigny, System of Today's Roman Law , Volume III, 1840, p. 9.
- ^ Bernhard Windscheid, Textbook of Pandect Law , Volume I, 1906, § 63, 2a.
- ↑ Jan Lieder, Die Rechtsgeschäftliche Sukzession , 2015, p. 33.
- ↑ Jan Lieder, Die Rechtsgeschäftliche Sukzession , 2015, p. 33 f.
- ↑ Jan Lieder, Die Rechtsgeschäftliche Sukzession , 2015, p. 36 ff.
- ↑ RGZ 109, 47.
- ^ Kristyna Marek: Identity and Continuity of States in Public International Law , 1954, p. 10.
- ^ Leonore Herbst: Staatensukzession und Staatsservituten , Duncker & Humblot, Berlin 1962, p. 21 .
- ^ Gilbert Gornig : The status of Germany under international law between 1945 and 1990. Also a contribution to the problems of state succession. Wilhelm Fink, Munich 2007, p. 26 f., 34.
- ↑ BGHZ 74, 112.