Podmioty nieposiadające osobowości prawnej w prawie niemieckim: uwagi prawnoporównawcze
Entities without legal personality in accordance with german law comparative law remarks

Summary/Abstract: The study presents the situation of entities without legal personality in the German law. An association in formation (Vorvereine) is an entity which, on the base of association registration, can acquire legal personality and become a formal association and take on rights and obligations. Association is a form used mainly for social reasons like sports, help for disabled people, literature, etc. Each of the members of the association has joint and several liabilities for the obligations of the association before registration (association in formation) unless a creditor acts in the justified belief that the association is registered. There are also unregistered associations which have legal capacity for certain actions but do not have a legal personality. These associations are regulated by § 54 BGB (Civil code), the articles concerning civil partnership (§ 705 and subsequent of BGB) and the regulations applying to registered associations with legal personality. The study also describes partnerships, dividing them into civil partnerships (Gesellschaft des bürgerlichen Rechts BGB-G (§ 705-740 BGB), general partner- ships (Offene Handelsgesellschaft OHG (§ 105) regulated by Commercial Code from 10 May 1897 (HGB) and limited partnerships - Kommanditgesellschaft KG (§ 161). Partnerships do not have a legal personality but, on the base on § 124 item 1 HGB, general and limited partnerships have legal capacity. This partnership may, in its own name, acquire rights, including the ownership of real estates and other property rights, assume obligations, sue and be sued. These regulations are very similar to the Polish commercial code with regard to partnerships (art. 8 § 1). In the German doctrine there is controversy concerning the definition of the third type of entity like partnerships, companies in formation or unregistered associations. In a limited partnership, at least one partner (general partner) bears unlimited liability towards the creditors for obligations of the partnership, and at least one partner (limited partner) bears limited liability (§161 HGB). The act of 25 July 1994 r. regulates the Limited Liability Partnerships in German law for the professional firms. These partnerships have legal capacity and are registered. In the case of companies in formation (in organization - Vorgesellschaft; in Gründung) the German doctrine pointed out three stages: 1) before singing the company contract (Vor-Gründungsgesellschaft), 2) company in organization after concluding the contract (Vorgesellschaft) and 3) company after registration (Gesellschaft mit beschränkter Haftung). Companies in organization have legal capacity. They may, in their own name acquire rights (e.g. open the bank account), assume obligations. The business name of a company in organization contains the additional designation „i. G.” or in Gründung. According to the part of doctrine opinion shareholders of a company in organization are liable, jointly and severally with the company, for its liabilities up to the value of the unpaid contribution. The article also describes the situation of cooperatives in formation (Vorgenossenschaft) which exist before the cooperative registration. On the basis of registration cooperatives obtain legal personality. The study contains comparative remarks concerning Polish, French and English law in the scope of entities without legal personality.

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