Business Judgment Rule und Insolvenzverwalterhaftung

2019 ◽  
Author(s):  
Sarah-Maria Resch
Keyword(s):  
Decision Making ◽  
Board Members ◽  
Business Decisions ◽  
Free Zone ◽  
Business Judgment Rule ◽  
Corporation Law ◽  
German Stock ◽  
Insolvency Proceedings ◽  
Constituent Elements ◽  
Stock Corporation

The codification of the so-called business judgement rule in section 93, para. 1, sentence 2 of the German Stock Corporation Act was intended to create a liability-free zone in the field of qualified business decisions for board members of a stock corporation. Especially since the continuation of business during insolvency proceedings has been made possible, an insolvency administrator steps into the position of a managing director and, as such, also has to make business decisions. This work examines whether and to what extent the business judgement rule in the German Stock Corporation Act is also applicable to the liability of insolvency administrators, which particularities their constituent elements have in comparison to stock corporation law and in which concrete decision-making situations an insolvency administrator can make use of the business judgement rule. The work closes by suggesting suitable wording for an insolvency business judgement rule.

Geschäftsleiterbinnenhaftung in Großvereinen

2021 ◽  
Author(s):  
Anton Leopold Nußbaum
Keyword(s):  
Supervisory Board ◽  
Economic Importance ◽  
Board Members ◽  
Legal Practice ◽  
Corporate Board ◽  
Corporation Law ◽  
Common Interests ◽  
Practical Analysis ◽  
Stock Corporation

The internal liability of managers of large associations is becoming increasingly relevant in the context of their growing economic importance, especially considering the stricter compliance obligations. The book develops de lege lata with the help of corporate principles a liability regime for board members and association managers with and without corporate board positions that is in line with common interests. At the same time, the author uses a practical analysis of various association structures to indicate the problems that exist in the realization of liability and recommends de lege ferenda for a mandatory supervisory board for large associations based on the model of stock corporation law. The work addresses equally academics and legal practice as well as the associations themselves.

Enthaftung durch Zustimmung

2021 ◽  
Author(s):  
Liska Müßig
Keyword(s):  
Limited Liability ◽  
Board Members ◽  
Legal Certainty ◽  
German Stock ◽  
The Law ◽  
Stock Corporation

Can board members and managing directors effectively exempt themselves from liability by having the shareholders approve the act in advance? The work is intended to contribute to more legal certainty in dealing with “exclusion of liability”. While the exculpatory effect of consent is recognised in principle, the details of conditions and limits are still controversial. The author discusses important issues in connection with the provision on exclusion of liability of Section 93 (4) sentence 1 of the German Stock Corporation Act. In the absence of a corresponding provision in the law governing limited liability companies, the author subsequently examines the extent to which the results obtained can be applied to limited liability companies.

Konsultative Hauptversammlungsbeschlüsse im Aktienrecht aus rechtsvergleichender Sicht

2021 ◽  
Author(s):  
Mehmet Sadik Çapa
Keyword(s):  
Subject Matter ◽  
General Meeting ◽  
General Context ◽  
European Law ◽  
Legal Basis ◽  
Management Board ◽  
Corporation Law ◽  
Legal Nature ◽  
German Stock ◽  
Stock Corporation

In German stock corporation law, non-binding resolutions of the general meeting as one of the participation instruments for shareholders have so far mainly been summarized or analyzed under the heading of management board remuneration. The purpose of this thesis is, however, to analyze these resolutions not only in this context, but in a more independent and general context. The thesis examines the admissibility and legal basis, legal nature, subject matter, adoption, as well as the consequences of non-binding shareholders resolutions. Thereby, various topics are compared with U.S., Swiss, and Turkish law. In addition, European law is also addressed in various aspects.

Der Rechtsanwalt als Aufsichtsratsmitglied

2019 ◽  
Author(s):  
Lars Frederik Bühren
Keyword(s):  
Legal Issues ◽  
Corporation Law ◽  
Supervisory Boards ◽  
Professional Law ◽  
Approval Procedure ◽  
German Stock ◽  
Scope Of Application ◽  
Stock Corporation ◽  
Academic Debate

This study examines the work of lawyers on supervisory boards in public limited companies. It is the first to investigate all the relevant legal issues in this respect, particularly with regard to consultancy agreements, from both a stock corporation law and a professional law perspective, the latter of which has been neglected in the academic debate on this subject to date. Firstly, the author presents the particular demands on lawyers on supervisory boards in detail before focusing on consultancy agreements according to § 114 of the German Stock Corporation Act (AktG). In addition to examining the requirements for drafting such agreements, he discusses, among other things, both the approval procedure in this respect and how framework contracts are dealt with, critically questioning jurisprudential positions and developing practical solutions. Moreover, he analyses all the constellations in which the scope of application of § 114 of the AktG could be broadened from both a stock corporation law and a professional law perspective.

scholarly journals Why Agents Need Discretion: The Business Judgment Rule as Optimal Standard of Care

2017 ◽  
Vol 13 (1) ◽  
Author(s):  
Andreas Engert ◽  
Susanne Goldlücke
Keyword(s):  
Decision Making ◽  
Theoretical Model ◽  
Standard Of Care ◽  
Business Decisions ◽  
Business Judgment Rule

AbstractShould managers be liable for ill-conceived business decisions? One answer is given by U.S. courts, which almost never hold managers liable for their mistakes. In this paper, we address the question in a theoretical model of delegated decision making. We find that courts should indeed be lenient as long as contracts are restricted to be linear. With more general compensation schemes, the answer depends on the precision of the court’s signal. If courts make many mistakes in evaluating decisions, they should not impose liability for poor business judgment.

No Stock Options for Supervisory Board Members of a German Stock Corporation: A Comment on In re Mobilcom AG, BGH II ZR 316/02 of 16 February 2004

2004 ◽  
Vol 5 (4) ◽  
pp. 347-354 ◽  
Author(s):  
Dirk Reidenbach
Keyword(s):  
Stock Options ◽  
Supervisory Board ◽  
Federal Court ◽  
Board Members ◽  
Management Board ◽  
Federal Court Of Justice ◽  
German Stock ◽  
The Law ◽  
Near Future ◽  
Stock Corporation

On February 16th, 2004 the German Federal Court of Justice (Bundesgerichtshof, BGH) delivered a judgment concerning stock options for members of the supervisory board of Mobilcom AG, a major German telecommunications company organized as a stock corporation. As is well known, German stock corporations have a two-tier board, consisting of the management board and the supervisory board. This decision by the BGH sheds again a new light on the much discussed and much disputed management structure of German stock corporations. After this decision, there are now only limited ways in which members of the supervisory board may be compensated with stock options, if at all. In the near future, even these possibilities might be foreclosed by new regulation. The following comment will give a brief overview of the case, the reasoning of the Court, the law as it stands, and finally the law as it might become.

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