On The Membership In The German Community Law

With the German economic community law as the main legal text, the dissertation explores the "membership (Mitgliedschaft)" in the Article38of the German Civil Code, focusing on the nature and the protection of the membership, mainly using the methodolodgy of language hermeneutics, legal interpretion, logical analysis, historical research, etc. In addition to the Introduction and Conclusion, this dissertation is divided into six chapters.The Introduction elaborates on the significance of the topic and the current research on the membership at home and abroad, especially the recent research state in Germany. In addition, it introduces the research materials and methodology, as well as the research ideas and the structure of the dissertation.Chapter One elaborates the Etymologie and the foundation of the membership.Firstly, based on the translation of "die Mitgliedschaft" in the Article38of the German Civil Code, the dissertation explains the basic meaning of "membership". Secondly, through describing the features of the communities as the foundation of the membership, this chapter defines the types of the communities. Finally, it explores the historical prototypes of the modern German communities from the Roman law and Germanic law. So this chapter concludes that in view of the development of contemporary German "Mitgliedschaft" theory, the research will abandon the translation of "She Yuan Quan" and use "Chen Yuan Quan" instead. The communities in the German law having the organizational independence and the legal acts, includes the partnership and the corporation (including non-economic Corp.), and have a large degree of crossover with the economic groups, but they do not completely overlap. The historical prototypes of the modern German communities are "universitas" and "societas" in Roman law, and "die deutschrechtliche Koperschaft" and "die Gemeinschaft zur gesamten Hand" in Germanic law, which is the historical foundation to the understanding of the modern German communities.Chapter Two mainly discusses the right attributes and contents of the membership. Firstly, it traces the development of the theories and the judgments about the membership in the partnership and the corporation in order to know the history of the development of the nature of the membership. Secondly, through the analysis of the core concepts of private law "right" and "legal relationship", it establishes the idea and the theoretical premise to analyze the nature of the membership. Through comparing with the ownership, the legal relationship between the creditor and the debtor, limiting property legal relationship, and the legal relationship of relatives, this chapter describes the special structure of the membership and the relationship of membership. After that, it discusses the specific rights and obligations of members, including the rights of participation and being protected, the property right, the obligations of loyalities and fund, etc. Finally, this chapter discusses the transferability and the inheritability of the membership, which can also be the object of the usufruct and the pledge. This chapter suggests that the membership can be assessed as a right, which is a special right with a bundle of rights. The obligations and the rights of the members connect with each other, does not affect the assessment of the membership. The membership is not only a right, but also a legal relationship, which is not contradictory. Comparing with other rights, the membership is a special right with a special structure. The core rights of the membership is the rights of participation and being protected.The property rights and preemptive rights may be divided into basic rights and specific rights, and the basic rights can not be separated from the membership. The property rights are not necessary rights of the membership.The membership can be transferable and inheritable and can be the object of the usufruct and the pledge.Chapter Three and Chapter Four, Chapter Five, Chapter Six are the whole-part relationship. Chapter Three is the general introduction to the tort liability of the membership. Using the methodolodge of historical analysis and qualitative analysis, this chapter expounds whether the membership is the "other rights" in the Article823, Paragraph1of the "German Civil Code", the application of which is gradually established according to the judgments and theories. Comparing with the ownership, personal rights, family rights, claims and other rights, this chapter analyzes the special nature of the membership as the "other right". Finally, it summarizes briefly the types and the imputability of the tort acts of the membership. This chapter comes to the conclusion:the membership is a special dominating right, the object of which is the community. Like every other dominating right, the membership can be protected from an infringement either of its own existence or of the specific rights. If the infringement only influences the object of the membership, that is the community, the "reflective damage" does not infringe the membership. In a word, the tort liability applies to the doctrine of the liability fixation of the tort law.Chapter Four focuses on whether the tort liability of the membership in the communities can be established. In view of the disputes on the theories of the tort liability of the membership in the communities, the chapter analyzes the different views and the basic foundament of the tort liability of the membership in the communities. Through expounding the general coexisting of the contract law and the tort law, the chapter expounds the possibility of coexisting of internal norms of the communities and the tort law for the protection of the membership. It also analyzes the relevant tort liabilities of the communities, its members and its organ members. The chapter concludes with the legal protection to the fault resolutions of AG shareholders’ meeting or the shareholders’ meeting of a limited liability company as an example to explain the general coexisting of tort law and the internal law of the communities. This chapter shows that the latent legal relationship of the membership as a dominating right can coexist with the legal relationship of the contract, which will becomes the coexisting of the legal relationship of tort liability and the legal relationship of membership when the membership is infringed. According to the Article823, Paragraph1of the "German Civil Code", the tort liability of the membership in the communities does not conflict with the jurisdiction order of the communities. The regulations of the tort law play the role as the general provisions for the internal regulations of the communities and can mend the holes of the community law. In the communities, the tort liablities of the communities, its members and its organ members may take tort liabilities.Chapter Five expounds in more details the specific situations of the infringement of the membership and discusses the impact on the membership itself, the illegal possession of the membership, the infringement of the basic property rights, the members’ rights of being protected and the information rights of the membership. This chapter comes to the results that, the impact on the membership itself exists by the expulsion of members, illegal disposition and the actual exercise of the membership; the illegal deprivation of the abstract preemptive rights may infringe the possession of the membership; the infringement of the property rights mainly refers to the violations to the basic property rights, such as the typical infringement of the fundamental rights of the earnings (not implementing the resolution or implementing the illegal resolution) and the common property division; the voting rights by law and regulations are the rights of being protected and their second rights are the rights of revocation; the measures of the restructuring the company groups, the obligations of the company’s resolution, stealth profit distribution, defect resolution, non-implementation of the affirmative resolution or implementation of the negative resolution probably infinge the membership; the information right is a supplementary rights, which should be protected by the tort law. Chapter Six discusses the special problems of the tort liability of the membership.The chapter analyzes the illegality of the tort acts, subjective fault and the legal consequences. This chapter concludes that the membership is protected by the tort law and the property law in German, correspondingly, the Article823, Paragraph1of the "German Civil Code" is the norm of the tort law which requires the intruders’subjective fault and the Article1004is the norm of the property law, which does not require the intruders’subjective fault. The legal consequences of the infringement of the membership are the rights to claim for damages, nonfeasance and anti-damages. The duty of loyalty has proposed the limiting time and scope of restitution request.The Conclusion summarizes the research judgments to the topic, that is, with the modern development of the membership in the German community law,"She Yuan Quan" should be abandoned and use "Chen Yuan Quan" instead; the communites in the German law include the partnership and the corporation; the membership is not only a right, but also a legal relationship; the membership in the communities is protected by the Article823, Paragraph1of the "German Civil Code" and the Article1004; the protection of the membership does not conflict with the internal legal relationships in the communities; the specific situations of the infringement of the membership mainly include the impact on the membership itself and the infringement of its rights; the constitutive requirements and the legal consequences of the tort liability of the membership have the specialties with the influence of the community law. Finally, it puts forward that the theories and rules of the membership in Germany can be provide much enlightment and experience to the improvement of the theories of membership in China.