straw man

from Wikipedia, the free encyclopedia

Straw man (plural straw men or gender-neutral straw men ) is a legal subject who appears in business or other legal acts for another person (back man) who does not want to, cannot or is not allowed to appear himself.

history

The word goes back to an old Roman ritual of the Argei , in which straw dolls were thrown into the Tiber on the Ides of May. Every year a Greek and a Greek woman had to be thrown from the bridge into the Tiber. Since human sacrifice was out of the question, figures woven from rushes were thrown into the water. Even today one speaks of a straw man when someone is only pretended to be. In 1691 Kaspar von Stieler mentioned the straw man from the Latin translation ( Latin vir stramineus ).

Legal issues

Both natural and legal persons can be considered as straw man . Especially in legal dealings, straw men are people who, as a courtesy, often agree to do business for third parties or take on functions for third parties who do not want, cannot or are not allowed to appear themselves. The straw man is a forward person who acts in his own name but for the account of the man behind. The man behind regularly uses a front man if he wants to deceive in legal dealings or wants to achieve legal consequences in this way that he cannot achieve himself, for example because he does not meet the criteria or wants to circumvent legal or contractual obstacles . The straw man concludes the deal externally, but passes on the legal consequences internally to the man behind. It is therefore a special case of the fiduciary legal transaction.

Reasons for straw men

A straw man is brought forward in particular if the person actually interested in the business cannot perceive it himself ( criminal record , lack of business license , legal prohibitions ). The involvement of a straw man also leads to a legally effective contract, even if the other business partner knows the straw man status. The straw man concludes a contract in his own name, but for the account of the man behind who is entitled to the business result.

Straw man as managing director of a GmbH

Straw men often appear in company law . You appear as the founder or managing director of any company for someone who cannot act in this capacity himself. For example, Section 6 (2) GmbHG clarifies who may not be the managing director of a GmbH. These include in particular those one professional or profession , a trade may not exercise or a commercial branch from a judgment or an administrative decision or because Insolvenzverschleppung or other insolvency offenses to imprisonment have been convicted of at least one year. These people use a straw man who meets the legal requirements.

The straw man is responsible for fulfilling the employer's obligations set out in Section 266a (1) of the Criminal Code in accordance with Section 14 of the Criminal Code. As the managing director of a GmbH, the straw man is also subject to fiduciary duties according to § § 35 , § 43 GmbHG, in particular in the event of damage to the company's assets. The straw man acting as the de facto managing director has the same legal obligations as the formal managing director if he performs the managing director function “to a significant extent”. To do this, the straw man must meet at least six of the eight classic characteristics in the core area of ​​management.

Straw man as founder of an AG

The founder of a stock corporation is someone who has established the company's articles of association and has taken over at least one share ( Section 28 , Section 280 (3) AktG). The straw man acting for the real founder is also legally obliged. In this context, straw man is a person who has participated in the establishment of the AG in his own name but for third-party account and has undertaken to exercise the rights acquired from the participation exclusively in accordance with the instructions of the client. The declarations made by the straw man in the founding contract usually do not meet the requirements of a sham business, because the will of all founders is seriously aimed at establishing an effective foundation.

Straw man in trade law

In trade law , a straw man is someone who is put forward as a trader in order to conceal the actual circumstances , but the trade in question is actually operated by someone else. This occurs in particular if the person behind cannot or does not want to meet the formal (possession of a permit, concession or entry in the trade register ) or even the material ( unreliability , lack of master craftsman's examination ) requirements for carrying out a trade. According to § 35 GewO, action can be taken against both the front man and the man behind. Both the front man and the man behind are considered traders. The front man is referred to by the Federal Administrative Court as a “puppet that can be controlled at any time”.

Straw man as guarantor

It is not uncommon for people to do business for third parties out of courtesy, for example in order to enter into guarantees or other liabilities. If a managing director appointed as a straw man takes over the guarantee for bank debts of "his" GmbH, a bank can assume that he is acting for economically reasonable reasons for which he is solely responsible, as long as it is not aware of the opposite. A straw man shareholder does not have an interest of his own, but must allow himself to be treated like a real shareholder, because that is how he appears. The principles developed by the BGH on the immorality of guarantees do not apply if a guaranteeing limited partner only acts as a front man.

Straw man in securities law

According to Article 14 of the Market Abuse Ordinance , insider securities may neither be acquired nor sold. This also includes acting as a representative, indirect representative (“straw man”) or commission agent . ( Voting rights ) from shares acquired by the straw man are attributed to the person for whose account the shares are held ( Section 34 (1) No. 1 WpHG). The interposition of a straw man is not inadmissible, but is considered a fiduciary relationship. If a domestic issuer reaches, exceeds or falls below the thresholds of 5% or 10% for own shares either himself or through a straw man , he must publish this ( section 40 (1) sentence 2 WpHG).

Sham business

According to the judgment of the Federal Court of Justice of October 22, 1981, straw man transactions are to be distinguished from sham transactions according to Section 117 BGB. Since legal success in a straw man business is usually genuinely wanted by both sides, it is effective. The decisive factor is whether the parties really want to bring about the legal consequences of the agreement, i.e. whether the front man is personally entitled and obliged or whether the contractual partner should stick to the man behind. The straw man wants the legal consequences associated with a contract to occur. The advancement of a straw man in legal transactions then does not appear to be. Rather, the straw man business is seriously wanted, therefore such a business is legally binding for the straw man according to the established case law of the BGH.

In a sham transaction , the parties only want to create the appearance of a legal transaction; the legal effects associated with the legal transaction, on the other hand, should not occur. Only if it has been agreed between the straw man and his contractual partner that claims for and against the straw man are excluded does a sham transaction exist. Under these conditions, transactions with a straw man in accordance with Section 117 (1) BGB are void. This is the case, for example, if the contracting party wants to conclude the transaction exclusively with the person behind the contract or if it is a personal legal transaction that by its nature does not tolerate a straw man. But even if the contractual partner and the front man mutually assume that the legal effects should not occur in the person of the front man or the front man does not want to assume the obligations associated with the legal transaction in the external relationship and his contractual partner is aware of this, a sham transaction can be accepted become. A sham transaction is void according to Section 117 (1) of the German Civil Code (BGB), but the concealed, actually intended transaction is effective according to Section 117 (2) of the BGB. It is only in the case of sham business that it is not the front man but the man behind who is authorized and obliged.

The front man in tax law

In tax law - as in civil law - only the straw man from the legal transaction is entitled and obliged. The only exception is a so-called forward straw man business if the contracting parties are in agreement or tacitly agreed that the legal effects of the business are not to occur between them, but between the contracting party and the person behind the contract.

In Austria , the tax treatment is carried out as follows: The straw man is legally to be regarded as a hidden trustee. An asset handed over in trust is to be attributed to the trustor under Austrian income tax law in accordance with § 24 BAO. For example, if a straw man purchases a piece of land and leases it, the income from it is to be allocated to the trustor (client). According to prevailing opinion, two taxable deliveries or services are realized in terms of sales tax: One between the third party and the straw man, a second between the straw man and the client. The specific design is particularly relevant if one of the parties involved is not an entrepreneur in terms of sales tax and is not entitled to any input tax deduction. Fees and transaction taxes (e.g. real estate transfer tax) are based on the legal transactions concluded; therefore falls z. B. when buying a property by a straw man and then transferring it to the client twice.

foreign countries

In a decision by the Austrian Supreme Court, the loan from a bank to a third party was secured with a land charge by a company whose shareholder was close to this third party without any recognizable operational justification. In fact, the third party was merely the partner's front man, and the loan was also collected from the partner. The suspicion of an inadmissible return of deposits should therefore have imposed itself on a bank with a degree of clarity bordering on certainty, since a company that had no apparent connection with the borrower had provided security for the borrower.

In foreign-speaking countries there is also the fact of the straw man, sometimes translated literally. Straw men are not called uniformly in English. These are people who are advanced for a specific business ( English frontmen ), managing directors ( English nominee directors ), often agricultural and food-related intermediaries ( English intermediate actors ), subsidiaries (rarely) or simply straw men . The latter are people "whose meaning or function is only nominal in order to cover up the activities of another". The straw person does not intend to have a real interest in the property to be acquired, they enter into a contract as an agent ( English straw purchase ; e.g. lawyers for their clients). A “straw purchase” is legal as long as the person behind the purchase ( English ultimate receiver ) does not use the acquired items in the context of a criminal offense (weapons, alcohol or mortgage loan) or the person behind cannot be the first buyer for legal reasons.

In France , a straw man ( French homme de paille ) is a person who uses his name to cover acts or documents of someone else. A dictionary from 1752 already advised that someone should not take from men to whom someone does not make his own commitment; they are non-existent people ( French homme de néant ).

Others

The term is often used colloquially; For example , if a third player is missing for Skat , there are additional rules for “ Skat with a straw man ”.

All straw men of the American Cosa Nostra had quickly lost their casino license in Las Vegas or were entered in the black book - like their clients. One of the famous straw men in Las Vegas was u. a. the real estate agent Allen Glick .

See also

literature

  • Hermann Pump: The front man for sales tax in retail and gastronomy - determining the right entrepreneur for initial sales, liability and enforcement. UStB 2003, pp. 15-19.
  • Hermann Pump, Herbert Fittkau: Avoiding the liability of the GmbH manager for tax debts of the GmbH. Berlin 2012, ISBN 978-3-503-13666-7 .
  • Hübschmann / Hepp / Spitaler, AO / FGO, § 39 AO Rn. 155 ff, 162, 187.

Web links

Wiktionary: straw man  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Ovid Fasti 5, 637-662. Cf. also Dionysius of Halicarnassus Antiquitates Romanae 1,19,38.
  2. ^ Heinrich Honsell: Roman law. 7th edition, 2010, p. 12 f.
  3. ↑ Kaspar von Stieler, Der Teutschen Sprache Genealogy and Fortwachs or Teutscher Sprachschatz , 1691, Sp. 1237 .
  4. ^ RG JW 1938, 2837.
  5. ↑ Reinhard Bork: General part of the BGB. 2006, pp. 303, 500-501 ( digitized version ).
  6. ↑ a b c d BGH NJW 1982, 569.
  7. ↑ BGH NJW 1995, 727.
  8. ↑ Folker Bittmann, Insolvenzstrafrecht , 2004, p. 195 ( digitized version ).
  9. ↑ BGH NJW 1988, 1789 f.
  10. ↑ BayObLG, judgment of February 20, 1997 - 5 St RR 159/96 ; See also BGH, decision of January 23, 2013 1 StR 459/12, para. 37 .
  11. ↑ Florian Becker u. a .: Stock Corporation Act. 2011, p. 355.
  12. ^ Klaus J. Hopt and Herbert Wiedemann: Stock Corporation Act. Volume 1, 2004, p. 84 ( digitized version ).
  13. ^ Klaus J. Hopt and Herbert Wiedemann: Stock Corporation Act. Volume 1, 2004, p. 85 ( digitized version ).
  14. ↑ BVerwG NJW 1977, 1250.
  15. ↑ Reiner Schmidt: Public Commercial Law, Special Part 1–2. 1995, p. 37 ( digitized version ).
  16. ↑ Reiner Schmidt: Public Commercial Law, Special Part 1–2. 1995, p. 38 ( digitized version ).
  17. ↑ BVerwGE 65, 12.
  18. ↑ BVerwG JuS 2004, 450.
  19. ↑ BGH NJW 2002, 1337.
  20. ↑ BGH ZIP 2002, 2249.
  21. ↑ Florian Becker u. a .: Stock Corporation Act. 2011, p. 790 ( digitized version ).
  22. ↑ Jörn Hirschmann: Shareholder control in insurance and banking law. 2000, p. 109 ( digitized version ).
  23. ↑ BGHZ 21, 378 , 381.
  24. ↑ BGH NJW 1982, 569 f.
  25. ↑ BGH NJW 2002, 2030 under II 1 with further evidence.
  26. ↑ BGHZ 36, 84 ff.
  27. ↑ a b OLG Karlsruhe NJW 1971, 619.
  28. ↑ BFH, judgment of November 10, 2010, Az .: XI R 15/09.
  29. ↑ Peter Hallas, The Straw Man in Tax Law , in: ecolex 1992, p. 262 ff.
  30. ^ OGH, judgment of September 14, 2011, Az .: 6 Ob 29 / 11z.
  31. ↑ Guy Smith, Shooting the Bull , 2011, no p.
  32. ↑ Louis Auguste de Bourbon, Dictionnaire universel françois et latin, contenant la signification et la définition tant des mots de l'une et de l'autre langue , 1752, column 936.