DiKE Die Organisationsklage nach Art. 731b OR

Company law imposes a large number of regulations with regard to the organization of stock corporations, limited liability companies and cooperatives. If there is a violation of such norms, an organizational deficiency within the meaning of Art. 731b para. 1 CO may exist. Such a defect is characterized by the fact that a prescribed organ is completely missing or is not legally composed. Such deficiencies may occur in the legal entity during the entire period of its legal existence - from its formation to its liquidation and deletion from the Commercial Register. If the company is flourishing and, moreover, the economic conditions are favorable, organizational deficiencies will, as a rule, be rather rare. On the other hand, organizational deficiencies usually occur more frequently in times of economic crisis, which has also been demonstrated in recent years. In the course of the revision of the GmbH, a new, uniform and cross-legal form of legal remedy for organizational deficiencies in corporate law was introduced in the form of Art. 731b OR. This provision raises numerous questions of substantive and procedural law, which are answered only rudimentarily in the law and in the dispatch. This dissertation attempts to answer as many of these questions as possible. In a first, substantive part, all organizational deficiencies, including special cases, are recorded and systematically presented, and the broad spectrum of measures available to the court is explained in detail. In a second, procedural part, the procedural and conflict-of-law aspects of the organizational action are conscientiously outlined.