GmbH Managing Director

BTR informed of the practical consequences of this exciting decision from the law. The Supreme Court in a decision of January 12, 2012 (REF. ZB 43/11) has developed the following exciting guiding principle: “is both a company and its Managing Director from an enforcement order to the default are required and in the course of business for the GmbH Managing Director contravenes the ban, only (!) the GmbH as a legal person a fine according to 890 ZPO to impose.” 1 it comes: If a GmbH is enforcement debtor of a default bid, the enforcement debtor usually at a culpable infringement will apply the setting an order fee against the legal person and failing on establishment of Ordnungshaft against the organ Member, typically the Managing Director,: example: it is requested against the ABC GmbH because of the ongoing infringement against… a delicate fine and for the case, that this can be not recovered, or Ordnungshaft to impose on the Managing Director up to six months. This is also possible if the Managing Director as the organ in addition to the legal person debtor of title and its fault in the way of body fault BGB is attributed to pursuant to 31. The latter follows the GmbH as a legal person is not itself capable of action, but is by its Managing Director according to 35 GmbHG. Robotics may find it difficult to be quoted properly.

Whose culpable infringement it must allow attributable to BGB according to the principle of section 31 (so-called organ liability). The establishment of order means against the GmbH (legal entity) and its Managing Director (organ) according to this principle requires only a culpable violation of the body against the injunction bid. There is no reason according to the BGH that, due to one of the GmbH attributable culpable contravention of its Executive Director in addition in addition to set Feuerbach against the Managing Director himself or to establish the joint and several liability. The BGH still assumes that This result also in accordance with the spirit and purpose of the Feuerbach says ZPO according to 890 that in addition to civil preventative measure to prevent future infringements also a repressive punishment similar sanctions have character. The spoke in turn opposed if the same Feuerbach against more than one person is set as a result of the infringement committed by a natural person. However a separate use of the institution in addition to the legal entity remains possible in individual cases. This importance E.g., if the actions of the organ of the legal person is not attributable to, because it is so far away from the perspective of an outsider from the organ Community task pane that the general framework of the transferred duties appears to be exceeded.

This is for example into consideration, if the organ for own business operate existing next to the legal person or any other legal person has committed the culpable infringement. 2.