Legal subject

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Legal subject (or (legal) person ) in jurisprudence refers to a (potential) holder of subjective rights and obligations recognized by the legal system . Opposite are the legal objects ( things and intellectual property ).


The legal subject is a fundamental legal institution of all legal theories , because they have to be linked to legal subjects, as bearers of rights. They concentrate on the so-called natural person , the human being ; but human and legal subject are not synonyms, because not every legal subject is a natural person. In addition to the natural, there are also the so-called legal persons , these are associations of persons or special-purpose assets to which the legal system grants legal capacity .

The legal capacity, i.e. the capacity recognized by the legal system to be the bearer of rights and obligations, is constitutive for the legal subject: whoever is not legally competent cannot be the bearer of rights and obligations and thus cannot be a legal subject. To distinguish it from the legal capacity is the capacity to act , thus bringing about the ability through their own actions legal consequences to acquire particular rights and obligations to justify. This is constitutive for the legal subject. Whether and how an entity is legal, it is determined in the context of private autonomy itself. In law, there is always only such legal acts , their effects may affect other legal entities than the actor.

The German Civil Code does not use the general term of the legal subject, but rather refers to it as "persons" in the first book. The further classification of the BGB shows that there are natural persons and legal persons . Legal persons are associations of persons or estates that are given the status of legal subject by a state act. The BGB thus regulates the essential private law relationships of the legal entities in §§ 1–89 BGB or the legal objects (§§ 90–103 BGB). Our legal system allows legal subjects, within certain limits, to independently shape their legal relationships (e.g. freedom of contract ), the instrument of which is the legal transaction . Legal transactions relate to the assets of the legal entities such as the purchase contract ( § 433 BGB), the rental agreement ( § 535 BGB), the transfer of ownership ( § 929 BGB) or the pledging ( § 1205 BGB).


The natural law recognized only all free people as legal subjects. Even the Roman law differed free people ( Latin homines liberi ) and slave ( Latin homines servi ), the latter were not considered legal entities. The slave was not a legal subject, but only a legal object and as such was owned by his master. But even free people received their status as legal subjects only as members of a Roman civil community ( Latin status civitatis ).

The view that not the state , but only the person of the respective ruler can be the legal subject has been unreservedly asserted in England beyond the Middle Ages . Even today, English law shows that the concept of a state as a legal subject is theoretically poorly developed. For the German administrative lawyer Otto Mayer , the state was also not yet a legal subject in 1909. The constitutional lawyer Hans Kelsen demanded in 1913 that the state, as a legal subject, must submit to the law. In 1925, the legal scholar Franz von Liszt classified states as legal subjects, at least under international law , because they are the bearers of rights and obligations under international law. In their function as an asset holder or debtor , they are also legal subjects for him in private law .

In 1784, the German philosopher Immanuel Kant understood persons to be responsible subjects, "reasonable beings under moral laws" who, as a people (the set of legal subjects), constituted themselves as a state. "The legal subject not only carries out actions [...], but is able to determine the purpose of these actions validly for himself and for others", with which Kant elevates the unlawful to legal subjects. For his colleague Adolf Lasson it was clear in 1882 that what lies within the boundaries of a law is the sphere of the authority of all legal subjects.

The general part of the BGB, which came into force in January 1900, followed the Roman legal division into persons as legal subjects ( Latin personae ), things as legal objects ( Latin res ) and legal acts ( Latin actiones ). According to this, persons act as legal subjects by concluding legal transactions (mostly contracts ) about legal objects (things or rights). In 1907, the legal philosopher Julius Binder criticized the fact that previous theories only explained what “being a legal subject” means, but not what a legal subject is.


Overview (click on "[+/−]" to expand)

Natural person
Legal person
under public law [ +/− ]


Local authority
Personal corporation
Association body
Real corporation
Legal person
under private law [ +/− ]

Legal foundation

Registered cooperative
Registered association
Old legal association
Mutual insurance association
Investment stock corporation
REIT public company
Company with limited liability
Limited partnership based on shares
Entrepreneurial company (limited liability)
Society under civil law
Limited partnership
Open trading company
Partnership company
Partner shipping company
silent Society
embryo Nasciturus
Nondum conceptus
Community of property
Community of heirs
Homeowners Association

Natural and legal persons have legal capacity. As legal persons, the BGB knows the legally competent association§ 21 ff. BGB) and the legally competent foundation§ 80 ff. BGB); legal capacity gives them the status of legal subjects. As an example, the Federal Court of Justice (BGH) decided in January 2001 that the (foreign) company of the civil law company (GbR) also has legal capacity, so that it is also a legal subject. The main consequence of this is that a change of shareholder no longer has any influence on the existing legal and contractual obligations of the GbR.

In view of their particular economic importance, legal entities are also merchants and trading companies ( partnerships and corporations , cooperatives or mutual insurance associations ). Entrepreneurs are legal entities if they regularly and permanently offer paid services on the market. Not every entrepreneur within the meaning of § 14 BGB is also a businessman, but every businessman within the meaning of § 1 HGB is also an entrepreneur according to the BGB. The legal entities also include freelancers , craftsmen , farmers or start-ups . The legal entities of public law ( institutions , corporations , foundations under public law and local authorities ) are legal entities. As the largest regional authority, the state is legally capable , through a government also capable of acting and therefore a legal subject.

Animals are not legally capable and therefore not legal subjects, but are to be assigned to legal objects ( § 90a BGB). The fact that they are on an equal footing with other things is not due to a lack of ethical sensitivity, but to the fact that the rules of property law apply to animals as well as to other things. The silent society is a pure internal company because the rights and obligations of the silent partner are limited exclusively to the internal relationship; thus it is not a legal subject.

Relationships between legal subjects and legal objects

Entities pass through legal transactions with each other, for example by declarations of intent give, sign contracts, commitments received, property purchase or a fortune to inherit . The legal objects are subject to the control of the legal subjects and addressees of the actions emanating from the legal subjects. If a right holder is entitled to a subjective right without objection , he can assert it against other legal subjects in accordance with the right to conduct. Service relationships between the legal entities usually arise from contractual obligations such as the contract ( Section 311 (1) BGB). A claim standard is every legal norm that an entity as a claimant under certain conditions a legal right granted. The other legal entity thereby assumes an obligation. Subjective rights are the legal power conferred on a legal subject by the legal system.

Offense ability

In principle, legal entities are also capable of tort , i.e. in the area of unlawful acts they are also liable for damage to third parties . The ability to commit a crime initially affects natural persons. They are capable of tort unless they are

Legal persons as such are not capable of tort because they cannot harm others. However, since the legal person is represented by its organs and the activities of the administrators are viewed as actions of the legal person, the damages occurring in this context are to be attributed to the legal person within the framework of organ liability .


Individual evidence

  1. Reinhard Bork: General part of the civil code. 4th edition 2016, Rn. 151
  2. Stefan Klingbeil: The concept of the legal person. In: Archives for civilist practice (AcP), Volume 217, 2017, p. 848 (857 f., 871, 884 f.).
  3. Jan C. Schuhr: Legal dogmatics as a science. 2006, p. 205 f. ( limited preview in Google Book search).
  4. Reinhard Bork: General part of the civil code. 2006, p. 64 ( limited preview in Google Book Search).
  5. Jan C. Schuhr: Legal dogmatics as a science. 2006, p. 50.
  6. Reinhard Bork: General part of the civil code. 2006, p. 63.
  7. Reinhard Bork: General part of the civil code. 2006, p. 26.
  8. Reinhard Bork: General part of the civil code. 2006, p. 155.
  9. Rudolph Sohm: Institutions of Roman Law. 1923, p. 168.
  10. Paul Jörs: Roman law. Roman private law. 1949, p. 62 ( limited preview in Google Book search).
  11. William Kleineke: English Fürstenspiegel from Policraticus John of Salisbury to Basilikon Doron of King James I. 1937, p. 3
  12. ^ Hans-Dieter Gelfert: Typically English. How the British became what they are. 2011, p. 101.
  13. ^ Otto Mayer: The constitutional law of the Kingdom of Saxony. 1909, p. 14.
  14. ^ Hans Kelsen: On the doctrine of public legal business. In: Archives of Public Law. Volume 31, 1913, p. 212.
  15. ^ Franz von Liszt, Max Fleischmann: Das Völkerrecht. 1925, p. 94 ( limited preview in Google book search).
  16. Immanuel Kant: Introduction to legal theory. 1784, p. 31.
  17. ^ Adolf Lasson: System of legal philosophy. 1882, p. 207 ( limited preview in Google Book search).
  18. Julius Binder: The problem of the legal personality. 1907, p. 46.
  19. BGH, judgment of January 29, 2001, Az .: II ZR 331/00
  20. Reinhard Bork: General part of the civil code. 2006, p. 99.
  21. Reinhard Bork: General part of the civil code. 2006, p. 137.
  22. Eugen Klunzinger: Introduction to civil law. 2013, p. 46 ( limited preview in Google Book search).