Definition Juristische Person Des Privatrechts
The provisions relating to legal persons can be found in §§ 21 to 89 of the German Civil Code (BGB). Unlike natural persons, legal persons are not human beings, but represent a legal construct. A distinction must generally be made between legal persons governed by public law and legal persons governed by private law, depending on whether public law or company law applies. In 2009, the Swiss Federal Chancellery, in its Guidelines on Gender Equitable Language, with recommendations and “binding rules for the gender-equitable formulation of official texts of the Confederation”[54], requires grammatically consistent form with regard to legal persons (congruence); The double designation is rejected in order not to give the appearance of natural persons: to what extent are natural persons involved in legal persons? While the BGB has essentially stayed away from the theoretical dispute, the Swiss Civil Code (ZGB) is clearly committed to the theory of organs: “Legal persons are capable of acting” (Art. 54 ZGB), whose “organs are called upon to express the will of the legal person” (Art. 55 ZGB). In Austria too, legal entities include associations, cooperatives, limited liability companies, joint-stock companies, public law funds, foundations as well as estates and collective assets. The regulations of both countries largely correspond to German law. Contractual relations are concluded with the natural persons behind the legal person.
A legal person is not a natural person, but a group of persons with legally recognized independence. These are, for example, registered associations, joint-stock companies, associations or foundations. As you have just learned, legal persons have legal capacity. This means that it itself has rights and obligations and can act in legal transactions. It may conclude legal transactions in its own name and thus undertakes to fulfil its obligations arising from the legal transaction. The capacity of legal persons to act must be distinguished from legal capacity. According to the more recent case-law of the Federal Constitutional Court, foreign legal persons with their registered office in the European Union must be treated in the same way as national holders of fundamental rights within the meaning of Article 19.3 GG if their activities have a “sufficient national link”. Therefore, Fußballverein Rhein e.V. is a registered club and therefore a legal entity. The association has rights and obligations and may, represented by the board of directors (§ 26 Abs. 1 BGB), enter into legal transactions. These characteristics are also pronounced for all legal persons.
In addition, a change of members or partners does not change the legal situation of the legal person, which is closed indefinitely. A distinction is made between legal persons governed by private law and legal persons governed by public law. Meanwhile, the Prussian Joint Stock Company Act introduced in November 1843 described the joint-stock company as a legal entity requiring approval (§ 8 PrAktG), but did not conceive of it coherently. It unified the various regulations of the Province of Rhine (with the French Commercial Code) and other parts of the country (PrALR) by means of general provisions on public limited companies. In 1843, Georg Beseler succinctly understood the legal entity as a “union of several people for the achievement of common long-term goals.” [35] An 1854 monograph describes the legal person as “an inherently impersonal being to whom the state has given the capacity for rights and responsibilities through a legal fiction.” [36] Organs are natural persons who have the right, under the law, to act on behalf of the legal person and to represent it by law. Johanna wants to found the football club Rhein e.V. It has already registered the association in the register of associations and has already concluded a founding contract with its members. Now she wonders if it is a legal person. As a legal entity under private law, you can carry out tenders of any kind on evergabe.de. A public institution is an association of human and material resources for which a public administration body is responsible. It must fulfil a special public purpose on an ongoing basis.
Foundations governed by public law should be understood as institutions that have independent legal capacity. Their purpose is to manage a stock of public goods. The GA, on the other hand, is a pure company and therefore also represents a legal entity. The liability of legal persons is particularly important in commercial and corporate law. The legal person is only liable to the contractual partners with the assets of the company. Therefore, individual shareholders are not responsible for their private assets. Quasi-legal persons express that there are also legal forms that have only partial legal capacity, but which can act in legal transactions such as legal persons. Thus, Paragraph 124(1) of the German Commercial Code (HGB) provides that the general partnership (OHG) may acquire rights and enter into commitments in respect of its company, acquire ownership and other rights in rem in immovable property, bring legal proceedings and be sued. In accordance with § 161(2) of the German Commercial Code (HGB), this also applies to the limited partnership (KG). For this reason, the OHG and the KG – for which the principle of separation has not been implemented – are counted among the quasi-legal persons. In addition, all legal persons governed by public law have only partial legal capacity because their legal capacity is limited to the performance of the public tasks entrusted to them.
There are three levels to distinguish: organ carrier – organ – organ lawyer. [8] The holder of the organ is a legal person, the body itself may in particular be the management board, the management board, the supervisory board, the board of directors, the general meeting or the general meeting. Organ lawyers working for this purpose assume rights and obligations vis-à-vis the organ bearer. Only the management board or the board of directors, whose mission is to represent the legal person externally before the courts and amicably and which are internally responsible for the management of the company, can be considered as bodies having an external effect. In the case of legal persons, private law distinguishes between a company incorporated as a member and an institution consisting of assigned assets, such as a foundation or a company. The basic form of a company governed by private law is the registered association (e.V., see § 21 and § 22 BGB). Especially when it comes to commercial law, the term company was also coined.
