Self-employment (professional)

from Wikipedia, the free encyclopedia

You are professionally self-employed if you are notsubject toany management rights, are notintegratedinto any external work organization andcan freely determine your working hours .

General

Self-employed persons are referred to as self-employed , in Austria also self-employed , Swiss self-employed or self-employed .

The general legal basis for self-employment is the principle of freedom of trade , according to which anyone can practice any trade ( Section 1 (1) GewO ). However, where there are risks for the consumer associated with the exercise of the trade , the state restricts this right and makes exercise dependent on its permission (defense against danger).

The demarcation to the employee has always concerned the legislature , the specialist literature and the case law. A demarcation is necessary because the classification of a person as an employee or self-employed has far-reaching legal consequences . This begins with the legal question of whether someone is subject to the instructions of another or not ( labor law ) or whether he earns income from non-self-employed work or income from self-employed work ( tax law ).

Notation

In the 20th century, Duden and other dictionaries such as Wahrig and Mackensen only recorded the forms self-employed, self-reliance , etc. (pronounced [zɛlpʃtɛndɪç]), which is why it was widely assumed that self-employed, self-employment , etc. (pronounced [zɛlpstʃtɛndɪç]) ​​were misspelled (and incorrect spoken). The older Grimm dictionary, on the other hand, had explicitly advocated the forms with a double st , and Adelung only appears independently in 1811 . Since the spelling reform of 1996 , both forms have been expressly considered correct, with Duden , Wahrig and the German-language news agencies recommending independently , etc., while the reform-critical Swiss Orthographic Conference independently , etc. Both spellings can be found in legal texts and in the media.

Legal issues

The individual areas of law consider independence in a slightly modified form because of the different legal purposes.

Employment Law

Self-employed in terms of labor law is anyone who is personally independent; the economic dependency of a person on another legal entity is not a criterion for gainful employment. If the employee is therefore subject to a comprehensive right to issue instructions with regard to working hours , duration and place of work for performing the promised services, an employment relationship exists. If he can essentially freely design the working conditions , he is a freelancer . The personal dependency of an employee can consist in the fact that he has to observe work instructions regarding the time, place and content of the services owed. Self-employment means that you are essentially free to organize your work and determine your working hours ( Section 84 (1) sentence 2 HGB ). If the contracting party grants the employee the right to involve third parties in the provision of services, this is an indication of self-employment. If the contractual partners agree that the employee is entitled to engage in other professional and commercial activities during the term of the contract, this is an indication of self-employment.

Self-employment also presupposes that it is neither a matter of " employee-like persons " ( e.g. § 92a HGB; "one-company commercial agent") or § 12a TVG (freelancers for radio and television companies who are economically dependent and comparable to an employee in need of social protection) or home workers or house traders ( § 2 HAG ).

Social security law

The definition of self-employment is derived from Section 7 (1) SGB ​​IV . This contains definitions that enable self-employment to be differentiated from dependent employment . Section 5 (5) SGB ​​V assumes that people who regularly employ at least one employee more than marginally in connection with their self- employed activity are self-employed full-time. § 2 SGB ​​VI declares self-employed persons to be subject to pension insurance.

According to the case law of the Federal Social Court (BSG), there is an entrepreneurial risk if the success of one's own economic commitment is uncertain. It regularly means using your own capital , which can also be associated with the risk of loss. A company is to be understood as any - and not just a commercial - work organization , e.g. B. the presence of a supervisor who regulates the work process. If the contractor is bound to only one contracting party ( exclusivity ) or if the work is performed exclusively in the name and for the account of the client , the situation is more like an employee (see bogus self-employment ).

The Federal Labor Court (BAG) and the BSG have also established other criteria that can help to differentiate dependent employment from self-employed activity. Indications for self-employment are:

  • Provision of services in your own name and for your own account.
  • Freedom of choice for the contractor as to when and how much equipment / means of transport / means of production are purchased and how the purchase is financed.
  • Freedom of choice for the contractor regarding the customer's payment method (e.g. immediate cash collection, options for deferral, etc.).
  • The contractor's discretion regarding the price calculation.
  • The contractor is free to use auxiliary staff.
  • Other employees may be employed in the contractor's company .
  • The contractor has its own resources (e.g. vehicle fleet).
  • The contractor uses its own working capital.
  • The contractor is allowed to acquire his own customers.
  • The contractor is liable to the client in the event of damage to products or production goods or means of production if the client is called upon by a customer.
  • The contractor has its own advertising options.
  • The contractor maintains its own business premises (which may also be a so-called Home Office ( domestic office be)).
  • The contractor keeps its own business books.
  • The contractor has significantly more office work to do than an employed person.

Trade law

In trade law , a trade is defined as any self-employed economic activity that is carried out on its own account, under its own responsibility and with the intention of making a profit in the long term , with the exception of freelance or agricultural activity. If you start the independent operation of a related industry, a branch or a dependent branch office must notify the competent authority in accordance with § 14 para. 1 GewO same show .

Tax law

Constituent element

Analogous to trade law, self-employment is one of the factual requirements for all profit income in income tax law . This is understood to mean self-reliant activity on one's own initiative and accepting the entrepreneurial risk.

In sales tax law , an entrepreneur is someone who, in accordance with Section 2 (1) of the UStG, carries out a commercial or professional activity independently. Accordingly, he must not be obliged to follow the instructions of another entrepreneur or merely represent an organ of the entire company.

Independent work

Income from self-employed work is one of the seven types of income in income tax law and is different from other income from commercial operations as well as agriculture and forestry .

species

In voluntary self-employment, someone makes a conscious decision to become self-employed based on a personal goal ( start-up company , company formation ). An involuntary self-employment can at family present when a person's succession for example, an inheritance must compete. In Germany, however, the legal institution of the estate administration , which can also be ordered ex officio, is the best option .

Even with foreigners, the path to self-employment as a reaction to employment problems ( hidden unemployment ) on the labor market is involuntary . Taking into account existing qualifications , the trades are selected where the entry barriers are lowest (e.g. a snack bar ).

Real self-employment requires that no instruction-bound or dependent service is provided as part of an employment relationship. The actual circumstances are decisive here. If self-employment is only provided on the basis of a contract in order to conceal an actual dependent employment relationship, then there is pseudo-self-employment . If the franchisee is relieved of the entrepreneurial risk in franchising , it is also bogus self-employment.

Freelance workers are self-employed on the basis of a service contract within the meaning of Section 611 BGB. The specification of time and place of the picture to be taken does not necessarily imply an employment relationship with the freelance photographer.

The " new self-employment " is characterized by the fact that former employees set up a one-person company and only work for one employer. At the moment it is unmistakable that in the political and trade union discussions the new self-employment is predominantly seen from the perspective of bogus self-employment.

The self-employed and the helping family members use their own and third-party physical and monetary capital as well as their labor in the production process . According to the European System of National Accounts (2010), the self-employed are defined as “persons who are the sole or joint owners of a non-legal entity in which they work, with the exception of those non-legal entities that are classified as quasi-corporations. The self-employed also include the following categories: unpaid family workers, homeworkers and employed persons who produce alone or jointly solely for their own consumption or investments. If self-employed persons also carry out a paid activity as their main activity, they are counted among the employees ”.

According to official statistics, the self-employed are people "who manage a business or a place of work of a commercial or agricultural nature economically and organizationally as owners or tenants, including self-employed craftsmen and all freelance workers, home traders and intermediate masters ".

Delimitations

The terms entrepreneur / employer / self-employed are not always easy to distinguish from one another.

The status of an employer is different from the status of an entrepreneur. An entrepreneur can also be someone who is not an employer because he has no employees (e.g. a commercial agent ). An employer can be someone without being an entrepreneur (a retiree employs domestic staff ). The resident doctor is self-employed, but not a trader, because the practice of medicine is not considered a trade ( § 6 GewO), but he is an employer of medical specialists and also an entrepreneur ( § 14 Paragraph 1 BGB). Normally, however, the employer is also the owner of the company, and labor law is, as it were, the company's internal law . When concluding a legal transaction, the entrepreneur acts in the exercise of his commercial or independent professional activity ( § 14 BGB).

An employment relationship differs from the legal relationship of a freelancer (service contract) in the degree of personal dependency in which the person obliged to provide the service is in each case.

International

From the point of view of social insurance , people in Switzerland are considered to be self-employed who work in their own name and for their own account, are independent in their work and bear the economic risk themselves. The self-employed have a company (sole proprietorship, AG, GmbH, etc.) with their own infrastructure, issue the invoices in their name, bear the payment risk and pay the VAT. You decide for yourself about your organization, your working method and the transfer of work to third parties. You often work for several clients.

The independent exercise of a trade is regulated in Austria by the GewO . According to Section 1 (2) GewO, an activity is carried out on a commercial basis if it is carried out independently, regularly and with the intention of generating income or other economic benefit, regardless of the purposes for which it is intended. Self-employment within the meaning of this Act exists if the activity is carried out for one's own account and at risk (Section 1 (3) GewO).

EU citizens and citizens of Switzerland and the European Economic Area -Staaten Iceland, Norway and Liechtenstein have in all EU Member States freedom . You can therefore be self-employed or start a business. For other foreigners , the conditions under which they can be granted a residence permit for self-employment are regulated in Section 21 of the Residence Act. The immigration authority decides on a change in the requirements in the residence permit in accordance with Section 21 (6) of the Residence Act for the purpose of self-employment . According to a report by the Federal Office for Migration and Refugees from 2012, the main countries of origin of self-employed migrants with a residence permit in accordance with Section 21 of the Residence Act are the United States of America , the People's Republic of China and the Russian Federation .

In order to facilitate the taking up and exercising of self-employed activities, the European Parliament and the European Council issue guidelines in accordance with Art. 53 TFEU for the mutual recognition of diplomas, examination certificates and other qualifications as well as for the coordination of the legal and administrative regulations of the member states on the acceptance and Performing independent activities.

Anglo-Saxon self-employment is ( English self-employment ) to recognize the fact that someone does not (for an employer English employer ) operates. Demarcation problems, there are also here to entrepreneurship ( english entrepreneurship ). In the US , self-employed people with a net annual income of $ 400 or more must report this income directly to the IRS , where they also make a social security contribution. If your net income is less than $ 400 but your gross annual income is $ 600 or more, the income can be voluntarily reported to the IRS for that time to be counted towards Social Security. If the income is generated by the spouse of a person who includes the partner (who earns low income in self-employment) in their own tax return, the income must be declared and taxed in any case. In addition, the self-employed also pay contributions to Medicare . The obligations of the self-employed are regulated in detail in the Self-Employed Contributions Act (SECA) of 1954. This law is codified in Sections 1401-1403 of the Internal Revenue Code . Low-income self-employed can (SECA their posts by the control half English Federal Tax ) settle.

A business registration ( English business license ) is on the federal level only necessary if the industry is controlled by the state (z. B. transportation, broadcasting, sale of alcohol). In some states , lawyers, doctors, nurses, and architects also require a license. At the local level, there may be additional regulations that prescribe a business registration for even larger groups of people or even all traders. When registering a business in the USA, it must be noted that zoning laws or zoning ordinances apply in many parts of the city , which fundamentally exclude commercial activities - even purely online business.

See also

literature

  • Friedrich von Collrepp: Handbook of business start-ups. 5th edition. Schäffer-Poeschel Verlag, 2005, ISBN 3-7910-2628-3 .
  • D. De: Entrepreneurship - founding and growing small and medium-sized companies . Pearson Studies (Pearson Education), Boston / San Francisco / Sydney / Madrid / Amsterdam / Munich 2005, ISBN 3-8273-7119-8 .
  • MJ Fallgatter: Theory of Entrepreneurship: Perspectives on Research into the Origin and Development of Young Enterprises. German Univ.-Verlag, Wiesbaden 2002, ISBN 3-8244-9091-9 .
  • Günter Faltin: Mind beats capital. 7th edition. Hanser Verlag, 2010, ISBN 978-3-446-41564-5 .
  • Guy Kawasaki : The Art of the Start - On the art of successfully starting a company. Vahlen 2014, ISBN 978-3-8006-4680-7 .
  • Urs Fueglistaller, Christoph Müller, Thierry Volery: Entrepreneurship. Models - implementation - perspectives. With case studies from Germany, Austria and Switzerland. 1st edition. Gabler, Wiesbaden 2004, ISBN 3-409-12577-9 .
  • Johannes Lindner among others: Entrepreneur: People who implement ideas. Initiative for Teaching Entrepreneurship, Vienna 2005, ISBN 3-200-00294-8 .
  • Lutz von Rosenstiel , Thomas Lang-von Wins (eds.): Business start-ups and entrepreneurship: Topics, trends and perspectives. Schäffer-Poeschel, Stuttgart 1999, ISBN 3-7910-1315-7 .
  • Joseph Alois Schumpeter : Theory of Economic Development: An Inquiry into Entrepreneurial Profits, Capital, Credit, Interest and the Business Cycle. 8th edition. Duncker & Humblot, Berlin 1997, ISBN 3-428-07725-3 .
  • Official Journal of the EU : COM (2005) 548 final 2005/0221 (COD)

Web links

Wiktionary: independent  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Martin Abraham, Professional Self-Employment: The Consequences for Partnership and Household , 2006, p. 72
  2. ^ Keyword "self-employed" in the online edition, accessed on April 23, 2014.
  3. ↑ Grammatical-Critical Dictionary of High German Dialect , 1811, digitized online edition , accessed on April 23, 2014.
  4. ↑ Official dictionary (PDF; 2.3 MB) of the Council for German Spelling (according to the preliminary remark, the bold type expresses “no evaluation of the assigned orthographic and lexical variants”), accessed on April 23, 2014.
  5. ↑ Online entry on duden.de, accessed on April 23, 2014.
  6. ↑ Wahrig: One word - a case , knowledge-Media-Verlag, Gütersloh / Munich 2006, ISBN 3-577-07567-8 .
  7. ^ List of news agencies, accessed April 23, 2014.
  8. ↑ Online answer on the SOK website, accessed on April 23, 2014.
  9. ↑ Examples: § 493 ZPO and § 6 AEG
  10. ^ BAGE 41, 247 , 253
  11. ↑ Manfred Löwisch , Arbeitsrecht , 1991, p. 5
  12. ^ BAG BB 1990, 1064
  13. ↑ BAG, judgment of December 12, 2001, Az .: 5 AZR 253/00 = BAG MDR 2015, 11
  14. ↑ BAG, judgment of December 12, 2001, Az .: 5 AZR 253/00
  15. ↑ BSG, judgment of March 29, 1962, Az .: 3 RK 74/57
  16. ↑ PAGE 141, 299
  17. ^ Ingrid Oswald, Immigration and Urban Development , 1997, p. 174
  18. ↑ Karl Linne cabbage, labor , 1999, page 19
  19. ↑ BAG, judgment of August 11, 2015, Az .: 9 AZR 98/14
  20. ↑ BAG, judgment of January 29, 1992, Az .: 7 ABR 25/91 = BAG NZA 1992, 835
  21. ↑ Ulrich Preis, Erfurter Commentary on Labor Law , 2001, § 61 Rn. 119
  22. ^ Peter Fischer, Working in the Virtual Age , 1997, p. 84
  23. ↑ Dieter Brümmerhoff / Heinrich Lützel (ed.), Lexicon of National Accounts , 2002, p. 26
  24. ↑ Federal Statistical Office, Series 18: National Accounts , 2014, p. 26
  25. ↑ Federal Statistical Office, microcensus
  26. ^ Hermann Reichold, Labor Law, 2nd edition, Beck, Munich 2006, ISBN 3-406-53869-X , § 2 Rn. 5.
  27. ^ Ingrid Oswald, Immigration and Urban Development , 1997, p. 174
  28. ↑ Self-employed foreign entrepreneurs. Hamburg Chamber of Commerce, accessed on June 18, 2016 .
  29. ^ Andreas H. Block, Isabell Klingert: Immigration of self-employed and freelance migrants from third countries to Germany. (PDF) In: Working Paper 48th BAMF, 2012, accessed on June 18, 2016 .
  30. ↑ If you are self-employed information sheet of the IRS (2013)
  31. ^ Self-Employed Contributions Act (SECA)
  32. ↑ Do You Need a Business License to Be Self-Employed?