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von Göler (Hrsg.) / / § 6

§ 6 Directors

(1) The company must have one or more directors.

(2) Only a natural person of full legal capacity may be a director. Anyone who

  • 1.  as a person under custodianship is fully or partially subject to a reservation of consent (section 1825 of the Civil Code (Bürgerliches Gesetzbuch)) in the management of their assets,
  • 2.  on the basis of a court judgment or an enforceable decision issued by an administrative authority is not permitted to exercise a profession, a branch of a profession, a trade or a branch of a trade, insofar as the purpose of the enterprise fully or partially corresponds to the subject of the prohibition,
  • 3.  has been convicted for one or more wilfully committed criminal offences
  • a)  of failing to file a request to open insolvency proceedings (ʻdelay in filing for insolvencyʼ),
  • b)  referred to in sections 283 to 283d of the Criminal Code (Strafgesetzbuch) (ʻoffences in the state of insolvencyʼ),
  • c)  for making false statements in accordance with section 82 of this Act or section 399 of the Stock Corporation Act (Aktiengesetz),
  • d)  for false presentation as referred to in section 400 of the Stock Corporation Act, section 331 of the Commercial Code, section 313 of the Transformation Act (Umwandlungsgesetz) or section 17 of the Disclosure Act (Publizitätsgesetz), or
  • e)  to a term of imprisonment of no less than one year in accordance with sections 263 to 264a or sections 265b to 266a of the Criminal Code
  • may not be appointed as director; this debarment applies for a period of five years after the judgment becomes final, which period excludes the period in which the offender was detained in an institution upon an official order.

Sentence 2 no. 2 applies accordingly where the person is subject to a comparable ban in another Member State of the European Union or another Contracting Party of the Agreement on the European Economic Area. Sentence 2 no. 3 applies accordingly in the event of a conviction abroad for an offence comparable to those referred to in sentence 2 no. 3.

(3) Shareholders or other persons may be appointed as directors. The appointment is made either in the articles of association or in accordance with the provisions of Division 3.

(4) If the articles of association provide that all the shareholders are to be entitled to form the management, only those persons are deemed to be appointed as directors who are part of the company when this provision is laid down.

(5) Shareholders who intentionally or gross negligently leave a person who may not act as director to manage the company’s business are held jointly and severally liable to the company for that damage which arises on account of the fact that this person violates the obligations which he or she is under vis-à-vis the company.

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