Bogus society
A sham company is a partnership that does not actually exist.
General
The sham company is only an apparent merger to form a partnership, because the parties involved have not concluded a partnership agreement or have only concluded one in appearance. There is already no declaration of intent to conclude a partnership agreement. In the case of a void sham transaction according to Section 117 BGB, there is no sham company, but a faulty company. In the internal relationship they wanted to avoid a bond, and to awaken only by their interaction outside the appearance of a private company. This is exactly where the difference to the flawed society (wanted by those involved) can be seen.
In the case of corporations , a sham company cannot exist, since the articles of association must be submitted to the commercial register for registration ( Section 37 (4) No. 1 AktG, Section 8 (1) No. 1 GmbHG) and these legal forms only arise upon entry .
Reasons for bogus companies
The creditworthiness of a company can be strengthened by the appearance of the participation of well-funded people. On the other hand, the person with a bad reputation can be kept in the background by other people posing as shareholders . If the appearance of a joint company is simulated on business cards , letterheads or in the media, then there is also a sham company. If a partner leaves a real two-person company and this is not made known in the external relationship, it is also a sham company.
Legal consequences
The protection of bona fide third parties is achieved through legal liability, unless the stricter publicity rules of § 15 HGB apply. If the sham company was entered in the commercial register, the liability arises from § § 5 , § 15 Paragraph 3 HGB . If the creation of the legal certificate is to be attributed to the sham shareholders, they must allow themselves to be treated vis-à-vis third parties in good faith as if their sham company had been legally created. Then the sham shareholders are liable to their creditors like the shareholders of an OHG according to § § 128 , § 176 HGB, namely directly and without limitation with their private assets. Even if the bogus shareholders are not merchants , commercial law applies (§ § 345 ff. HGB on unilateral commercial transactions ), and in the case of commercial transactions by the creditor in good faith, also those relating to bilateral commercial transactions.
An example is a case decided by the Cologne Higher Regional Court , where several lawyers worked from common business premises, but all managed their own account (shared office ). If a common office sign and a misleading letterhead give the impression that the lawyers are connected as partners, each of the bogus partners can be liable for the mistakes of the other, because a client can assume that he has concluded the mandate contract with a partnership and thus all of them Lawyers are personally liable for the firm's liabilities. Internally, the party liable can then take recourse against the other.
Sham partner
Also under the term “sham society” are often - strictly speaking inaccurate legal terms - dealt with in which a society actually exists, but a certain person is only apparently its partner. This merely supposed member of the society can be correctly described as a "sham partner". The misrepresentation on which such cases are based can be intentional (e.g. to pass off lawyers employed by a partnership as partners to the client). But it can also be based on negligence, e.g. B. if the departure of a previous shareholder is inadvertently not pointed out on the company's website , but the person who has left is still listed there as a " partner " or similar. If a business partner of a partnership trusts in the (continued) membership of the apparent partner, the latter is liable to him according to established case law according to the principles of legal sham like a real partner. The result is that the legal consequences largely resemble the situation described above in the case of purely sham companies.
literature
- Florian Bartels, Christoph Wagner: The sham company as a "participant" in legal traffic In: Journal for corporate and corporate law 2013, pp. 482-513.
- Alexander Scheuch: The sham partner of the civil society. Nomos Verlag, Baden-Baden 2014, plus dissertation Münster 2013, ISBN 978-3-8487-0882-6 .
- Markworth, David: Scheinsozius and Scheinsozietät - the effects of the legal certificate in GbR and PartG . Carl Heymanns Verlag, Cologne 2016, including dissertation Cologne 2015, ISBN 978-3-452-28742-7 .
Individual evidence
- ↑ a b Peter Ulmer, Großkommentar HGB , 2004, p. 192 f.
- ^ Carsten Schäfer: Faulty association . S. 204 ff .
- ↑ BGH NJW 1953, 1220.
- ↑ Cologne Higher Regional Court, judgment of December 18, 2003 - 22 U 168/02.
- ↑ Alexander Scheuch, The sham partner of the civil law society , 2014, p. 52 with further references
