Self-organization

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Even affiliation is in corporate law in partnerships , the power law the shareholders granted right to organs being representative of society . The opposite is the foreign organization . The self-organization is - unlike the external organization - to be strictly applied.

General

For companies raises the legal question of who in her body as Executive or Managing Director may act. The shareholders are particularly suitable for this because they also carry the entrepreneurial risk with their equity . Company law has decided to make this question dependent on the type of company - partnership or corporation . Self-organization is a restriction on freedom of contract when drafting social contracts .

Legal issues

The prevailing opinion considers self-organization to be a mandatory principle of the law of partnerships. Therefore, in the case of civil law companies (GbR), open trading companies (OHG) and limited partnership (KG), the managing directors must come from among the shareholders . This is regulated for the GbR in § 709 Paragraph 1 BGB , for the OHG in § 114 Paragraph 1 HGB and for the KG in § 164 HGB (for the general partners ). As a hybrid form between corporation and partnership, the board of directors must also consist of members in the cooperative in accordance with Section 9 (2) GenG . Self-organization exists when the management body of a company is a partner body, so that membership of this body is based directly on membership. There are no regulations for the association's board in the BGB, so that the board of the association can be formed in external as well as in self-organization.

Powers (internal management, external representation) can be transferred to a non-shareholder; however, the shareholders must not be completely excluded from this.

purpose

The self-organization is intended to protect the unrestricted personally liable partners from liability risks that they could not influence themselves without management authority. On the other hand, the trust of legal relations in a company management acting responsibly out of self-interest should be strengthened.

Individual evidence

  1. BGHZ 146, 341 , 361
  2. Florian Jacoby, Das private Amt , 2007, p. 180
  3. Otto Palandt / Hartwig Sprau, BGB Commentary , 73rd edition, 2014, Vorb v § 709 Rn. 3 with further evidence, in particular from the case law of the BGH
  4. Claus-Wilhelm Canaris / Peter Ulmer, Commercial Code: Großkommentar , 1988, p. 5