Seat (legal person)
The seat of a legal person is after German law in the community , by law , statutes intended or other law or as to which the administration is run. The general place of jurisdiction of the legal person is determined with the seat .
Legal person under public law and its organs
The seat of a legal person under public law or one of its organs ( corporation , institution , foundation under public law , authority , agency ) is also called the official seat or official seat . The legal person (or its body) and its management have their usual focus of activity at the registered office. Local authorities do not have a seat. The place of jurisdiction is determined by the seat of their organs (e.g. ministries , local government ).
The seat can be determined by law, decree or a corresponding legal norm for establishment or organization. In the case of the federal government , an authority can be set up by a law as well as by an organizational decree of the Federal Chancellor (based on a resolution of the Federal Government) or, within the scope of the departmental responsibility , by a Federal Minister .
In addition to the official seat or headquarters, a legal person under public law can have other seats or locations. The federal ministries have because of the Bonn-Berlin-law with a company based in Berlin and Bonn . One of these seats is your main or primary seat.
Legal person under private law
The seat of a legal person under private law is generally determined in the private law statutes or is determined according to where the administration of the association , community or society is carried out. According to TFEU ( freedom of establishment ), the seat is determined by the statutes of the legal person under private law. This requirement is mandatory for the German legal person according to (1) BGB. The seat can be freely selected and changed for the legal person in the legal area of its justification and is colloquially also referred to as the place of business or company seat . According to German law, the seat of the legal person is based on the regulation for the domicile of a natural person.
Differentiation since the MoMiG
Since October 2008, the Law on Modernizing GmbH Law and Combating Abuse (MoMiG) has made a distinction between the registered office and the administrative seat of legal entities under private law.
The registered office ( statutory seat) results from the founding statute of a company (§ AktG or GmbHG). According to ZPO, it determines the jurisdiction of the trial court . According to AktG or GmbHG, it must be in Germany. The MoMiG abolished the previous regulation, according to which the registered office had to be located at one of the company's operating locations.and Paragraph 1
The administrative seat of a legal person under private law is not regulated by law, but was developed from case law and literature . It is irrelevant in substantive law , but only plays a role in international conflict of laws . The administrative seat of a company is the place where the head office is actually located and where the fundamental decisions of the company management are made and implemented. It is controversial whether the administrative seat and place of the management are identical according to AO . The definition of the administrative seat aims to identify the mainly affected state in which the focus of a company's economic activity is located. This has an impact on the company's taxation and on the legal system to which the company has to submit.
The country of domicile or domicile of a contract partner is the state on whose economic territory the counterparty has the focus of its economic activity. The economic territory is mostly identical to the geographic one, but there are deviations for offshore areas. In the case of legal entities, it is not the entry in a register that is decisive for assessing their country of residence , but the place of actual activity. The country of domicile is of great importance because the legal system of the respective country of domicile - and thus also the local tax law - applies ( country of residence principle ), if there are no deviating agreements in the choice of law in contracts . Letterbox companies and letterbox banks in particular take advantage of the country of residence principle by having their legal headquarters in offshore financial centers . In the case of natural persons , the country of domicile is the place in a country in which the person is domiciled or habitually resident . The country in which the borrower is also in credit grants for the country risk prevail, which the creditors also has to be considered as the credit risk of the borrower.
Notes and individual references
- In the direct state administration , the authorities and departments generally have no legal capacity . They are organs of their legal entity ( local authorities , for. Example, federal and country ).
- z. B. Organizational decree for the establishment of the Federal Office for Nuclear Waste Management of August 5, 2014
- Elaboration - federal agencies as non-legally competent public law institutions (Az. WD 3 - 3000 - 046/12). In: https://www.bundestag.de/ . German Bundestag - Scientific Services, February 22, 2012, accessed on August 21, 2019 .
- Olaf Thießen: Triangular relationships in international tax law with the participation of double-based corporations. Peter Lang, 2010, ISBN 978-3-631-60333-8 , p. 7. limited preview in Google book search
- Thomas Wirth: Country Risk Management for Banks . 2004, p. 274.