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- Art. 5a FC
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- Art. 55 FC
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- Art. 75b FC
- Art. 77 FC
- Art. 96 para. 2 lit. a FC
- Art. 110 FC
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- Art. 136 FC
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- Art. 11 CO
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- Art. 50 CO
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- Art. 143 CO
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- Art. 701 CO
- Art. 715 CO
- Art. 715a CO
- Art. 734f CO
- Art. 785 CO
- Art. 786 CO
- Art. 787 CO
- Art. 788 CO
- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
- Art. 808c CO
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- Art. 2 PRA
- Art. 3 PRA
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- Vorb. zu Art. 1 FADP
- Art. 1 FADP
- Art. 2 FADP
- Art. 3 FADP
- Art. 5 lit. f und g FADP
- Art. 6 Abs. 6 and 7 FADP
- Art. 7 FADP
- Art. 10 FADP
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- Art. 31 para. 2 lit. e FADP
- Art. 33 FADP
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- Art. 39 FADP
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
- Art. 33 CCC (Convention on Cybercrime)
- Art. 34 CCC (Convention on Cybercrime)
FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
- I. Content and prerequisites of the capacity to act of legal persons
- II. Organs of the legal person
- III. Legal Consequences of Lack of Capacity to Act
- Bibliography
I. Content and prerequisites of the capacity to act of legal persons
1 The capacity to act concretises the legal capacity of the legal person with regard to its ability to acquire rights and to create obligations (shaping of the law). At the same time, this capacity to shape the law is always limited by the legal capacity of the legal person: Without legal capacity, there can also be no rights of formation. In civil procedure, the capacity to act is the capacity to bring legal proceedings, which allows a legal person to bring legal proceedings on its own.
2 While legal persons do not have the capacity to act of their own accord, their capacity to act requires firstly legal capacity, secondly the necessary organisation and thirdly the appointment of the "indispensable organs" according to the law and the articles of association. (Art. 54 CC), which are then to "express the will of the legal person" (Art. 55 para. 1 CC). In other words: The actions of the organs are attributed to the legal person as its own. The (executive) organs do not act on behalf of the legal person (as representatives or third parties bound by power of attorney), but their actions are those of the legal person, of which the organs are "components". Consequently, Art. 54 CC stipulates that the legal person only acquires the capacity to act through the actual and proper appointment of organs. As long as the prescribed organs are missing or not properly constituted, the legal person is in principle incapable of acting. By way of exception, the law provides that a defective organisation may be remedied by the court or the supervisory authority on application.
II. Organs of the legal person
A. Concept of organ
3 The term "organ" can have two different meanings, which must be distinguished: On the one hand, it refers to the respective body or organisational unit that has a specific function within the legal person. On the other hand – and this understanding of a body is also used as a basis for Art. 54 et seq. CC – it is understood to mean the respective member of the organ, i.e. the respective natural or legal individual person as the "function bearer" who enables the externalisation of the will of the legal person in the first place.
4 The organ members must at least have capacity of judgement, capacity to act is not required. Thus, minors who are capable of judgement can also function as organs of a legal person.
1. Formal and de facto organs
5 In determining the person with organ functions, the legal doctrine and case law distinguish between formal and de facto organs.
6 Formal organs are designated by the body competent by law or statute to perform their function. In addition, persons are regarded as organs if they de facto act as such (de facto organs). It is required that they "have a decisive influence on the formation of the company's will" and at the same time are endowed with legal or actual decision-making authority, which would in itself be reserved for the actual organs. The decisive factor is therefore correctly a "functional concept of organs", which is of importance on the one hand with regard to the external representation of legal persons and on the other hand with regard to the liability of the organs.
7 In addition to this pair of terms, the term "material organs" is also sometimes mentioned in the literature. This refers to the managing directors who are appointed by a formal act, but who are not formal organs in the sense described above. It is disputed in the doctrine to what extent this term really (still) has a delimitation function.
2. Typology of the organs
8 Typically, legal persons have the following organs, which can be divided typologically into (i) organs for the formation of wills (e.g. the members', general or shareholders' meetings, cf. Art. 65 CC, Art. 698, 804, 879 CO), (ii) organs for the management and representation (e.g. the association board, Art. 69 CC; the foundation board, Art. 83 CC; the board of directors of the AG, Art. 707 et seq. OR, the management of a GmbH, Art. 809 ff. CO, or the management of the limited partnership or the cooperative, Art. 765 ff., 894 ff. CO), (iii) controlling bodies (such as the auditors, Art. 69b, 83b ZGB, Art. 727 ff., 907 ff. CO) and (iv) further bodies – provided for by law or the articles of association. Whether the concrete organ structure of a particular legal person corresponds to this basic structure or deviates from it is to be taken from the respective special provisions.
3. Relationship between organ and legal person
9 Dogmatically, the relationship between the organ and the legal person is, according to the prevailing view, to be described as an organ relationship. A distinction must be made between this and the actual employment contract, which, however, cannot take the place of the organ relationship. Rather, it is a flanking and at best supplementary legal relationship between the legal person and the person acting as a member of the executive body. The statement occasionally found in doctrine that there is a uniform "contract of agency" must therefore be clarified to the extent that its components under the law of obligations and the relationship with the organ must be assessed separately in each individual case. The consequence of this dual relationship under debt and company law is that the executive body member in an employment or commissioned relationship is equally bound by the obligations under debt law and those under company law.
B. Legal representation of organs
1. General
10 Organs express the will of the legal person in external relations. It follows that the legal acts of the organs that are performed for the legal person are attributed to the legal person and thus directly bind it. If, on the other hand, a person with an organ function acts in his or her own name, no imputation takes place.
2. Power of representation and representation authority
11 According to unanimous opinion, a distinction must be made between the power of representation in the external relationship (the "legal ability") and the power of representation in the internal relationship (the "legal permission").
12 The power of representation is related to the legal person's capacity to act and determines by which legal acts of the organ it can be bound externally. It is limited by the purpose of the legal person and in principle extends to all activities presumably covered by the purpose. Only those acts are excluded from the power of representation which are diametrically opposed to the purpose of the legal person and are virtually excluded by it. Transactions that are not part of the usual business of the legal person are also covered by the power of representation if they are in conformity with the purpose. Nevertheless, the following restrictions must be observed: First of all, the limitation of the power of representation may result from the function of the respective organ within the organ structure. Further limitations of the power of representation may result from an announcement to third parties or from entries in the commercial register (e.g. requirement of a collective or branch signature). So-called "self-dealing" (i.e. cases of double representation or self-dealing) also prevent the legal entity from being effectively represented. Finally, those acts of the executive body of the legal person that prove to be an "abuse of the power of representation" – i.e. acts of representation contrary to interests or duties – are not attributable to the legal person, provided that this circumstance was recognisable to the contracting third party or the third party should have recognised it with due diligence.
13 The power of representation, on the other hand, determines the extent to which the body is internally entitled to conclude certain legal transactions. However, the internal restrictions of the power of representation, which are permissible in principle and which do not at the same time fall under one of the exceptions mentioned above, remain irrelevant in principle vis-à-vis third parties acting in good faith. While they cannot prevent the legal person itself from being bound vis-à-vis the third party in the event that the power of representation is exceeded, they lead at most in the internal relationship to a liability of the acting person vis-à-vis the legal person.
3. Representation of knowledge
14 The knowledge of an organ is deemed to be the knowledge of the legal person as a whole. According to part of the doctrine, this applies even if only one of several members of the organ possesses certain information that should have been communicated to the remaining members of the organ within the framework of adequate communication. It should be noted, however, that the principle of "absolute knowledge representation" has been considerably relativised by more recent doctrine and – subject to a culpable disregard of the knowledge of other organs – only knowledge (-must) be attributed to the person effectively dealing with a matter.
C. Obligation of the Legal Person by "Other Conduct"
15 In the non-legal sphere, Art. 55 para. 2 CC applies. According to this, organs can bind the legal person "by their other conduct". For the imputation of conduct of organs outside the legal business sphere, a (formal or de facto) organ must act "in the exercise of a business activity". In other words, the act in question must not only occur "on the occasion" (i.e. in the same local or temporal context) of the business transaction, but must be functionally related to the organ's competence. On the other hand, it is not necessary that the act is covered by the organ person's power of representation. Purely private interests of the organ are not sufficient for the act to be attributed to the legal person, but a parallel self-interest of the organ does not prevent attribution.
16 Art. 55 of the Civil Code merely forms the attribution norm for a certain conduct, but not an independent basis for a claim. This must result from a separate norm. For example, a claim based on unlawful damage (according to Art. 41 et seq. CO or according to the provisions of the UWG) or unjust enrichment (Art. 62 et seq. CO), management without mandate (Art. 419 et seq. CO), culpa in contrahendo etc. may be considered.
D. Organ liability
17 The organs of the legal person may be personally jointly liable for tortious conduct towards third parties (Art. 55 para. 3 CC), namely with all their personal assets. The German wording requires "fault". However, a comparison with the French wording ("fautes commises") shows that this wording is too narrow and must be interpreted broadly: Any personal misconduct leading to the fulfilment of the respective fact giving rise to liability is sufficient, even if this does not presuppose any actual fault.
18 In the case of simultaneous liability of the legal person under Art. 55 para. 2 CC, there is neither exoneration of the acting organ nor recourse of the organ against the legal person, but joint liability of the organ and the legal person against the injured third party (Art. 50 para. 1 and Art. 143 et seq. CO). In the case of actions by several members of a body or members of different bodies, there is also joint liability in the external relationship, and in the internal relationship there is apportionment according to fault within the meaning of Art. 50 para. 2 CO as well as the principles of Art. 759 CO (solidarity and recourse). The possibility of an individual reduction of liability of only one liable party according to Art. 43 para. 1 CO (minor own fault) or Art. 44 CO (consent or aggravation) in the external relationship is debatable, but in view of Art. 759 para. 1 and 2 CO it is probably to be affirmed for the other legal persons as well.
19 Liability towards the legal person in the internal relationship is not governed by Art. 55 para. 3 CO, but by the legal relationship between the controlling body and the legal person.
III. Legal Consequences of Lack of Capacity to Act
20 Ensuring proper organisation and the effective appointment of organs are indispensable prerequisites for the capacity of legal persons to act (see n. 2 above). In a situation where a lack of organisation or a defective appointment of organs is already established before the legal person is entered in the commercial register, the commercial registrar may point out the defect to the parties so that they can remedy it. If there is an organisational defect, the court (or, in the case of foundations, the supervisory authority) may be called upon to take the "necessary measures". Possible measures are (i) the setting of a deadline to (re)establish the proper state of affairs, (ii) the appointment of the missing body or (iii) a so-called custodian, and (iv) as ultima ratio, the dissolution and liquidation of the legal entity. When deciding on the measures to be taken, the court or the supervisory authority must exercise its dutiful discretion, which also includes consideration of the principle of proportionality.
21 According to case law and doctrine, the interim representation of the legal entity by improperly appointed persons is then permissible in accordance with the provisions of Art. 419 et seq. CO.
Bibliography
Bärtschi Harald, Verantwortlichkeit im Aktienrecht, Zürich 2001.
Böckli Peter, Schweizer Aktienrecht, 5. Aufl., Zürich 2022.
Bürge Stefan/Gut Nicolas, Richterliche Behebung von Organisationsmängeln der AG und der GmbH Normgehalt und verfahrensrechtliche Aspekte von Art. 731b OR, SJZ 2009, S. 157 ff.
Gericke Dieter/Waller Stefan, Kommentierung zu Art. 754 OR, in: Honsell Heinrich/Vogt Nedim Peter/Watter Rolf (Hrsg.), Basler Kommentar, Obligationenrecht II, 5. Aufl., Basel 2016 (BSK-Gericke/Waller).
Jakob Dominique, Kommentierungen zu Art. 54 und 55, in: Büchler Andrea/Jakob Dominique (Hrsg.), Kurzkommentar, Schweizerisches Zivilgesetzbuch, 2. Aufl., Basel 2018 (KUKO-Jakob).
Jakob Dominique/Brugger Lukas/Humbel Claude, Recht der Non-Profit-Organisationen, Zürich et al. 2023.
Müller Roland, Der Verwaltungsrat als Arbeitsnehmer, Zürich 2005.
Müller Roland/Lipp Lorenz/Plüss Adrian, Der Verwaltungsrat, Ein Handbuch für Theorie und Praxis, Bd. I, 5. Aufl., Zürich et al. 2021.
Recordon Pierre-Alain, Les premiers pas de l’article 731b CO, SZW 2010, S. 1 ff.
Reitze Christophe, Kommentierung zu Art. 54/55, in: Geiser Thomas/Fountoulakis Christiana (Hrsg.), Basler Kommentar, Zivilgesetzbuch I, 7. Aufl., Basel 2022 (BSK-Reitze).
Riemer Hans Michael, Berner Kommentar, Schweizerisches Zivilgesetzbuch, Einleitung und Personenrecht, Die juristischen Personen, Allgemeine Bestimmungen, Systematischer Teil und Kommentar zu Art. 52–59 ZGB, 3. Aufl., Bern 1993 (BK-Riemer).
von der Crone Hans Caspar, Aktienrecht 2. Aufl., Bern 2020.
Weber Rolf H., Einleitung und Personenrecht, in: Tercier Pierre (Hrsg.), Schweizerisches Privatrecht, II Band, 4. Teilband, Basel 1998.
Xoudis Julia, Kommentierung zu Art. 54/55, in: Pichonnaz Pascal/Foëx Bénédict (Hrsg.), Commentaire Romand, Code civil I, Basel 2010 (CR-Xoudis).
Zobl Dieter, Probleme der organschaftlichen Vertretungsmacht, ZBJV 1989, S. 289 ff.