Közkereseti Társaság Ausztriában – OHG

A közkereseti társaság egy vagy több természetes vagy jog személyből áll, akik egyetemlegesen és korlátlanul felelnek a társaság tartozásaiért. A cégnévben vagy egy tag nevének kell szerepelnie a társasági formára való utalással együtt, vagy valamennyi tag nevét fel kell tüntetni. A közkereseti társaság keresekedelmi tevékenység folytatására alapítható, amelynek általános feltétele legalább évi 400.000 € -t elérő forgalom és bizonyos infrastruktúra. A közkereseti társaságot a cégjegyzékbe be kell jegyeztetni. A társaság alapításához legalább két tag szükséges, tag lehet jogi személy is. Amennyiben a társasági szerződés másként nem rendelkezik, a társaságban a tagok azonos részesedéssel vesznek részt, valamennyi tag képviseletre jogosult. Amennyiben a társasági szerződés másként nem rendelkezik, a tagokat 4% osztalékelőleg illeti meg tőkerészesedésük után. Ha erre a nyereség nem ad fedezetet, ez a százalákarány alacsonyabb is lehet. A fennmaradó nyereséget az év végén a tagok között egyenlő arányban kell felosztani, illetve a veszteség őket egyenlő arányben illeti meg. Gazdasági társaságot általában bármely külföldi és belföldi természetes és jogi személy, illetve jogi személyiség nélküli gazdasági társaság alapíthat. A közkereseti (és betéti) társaság esetében azonban – éppen a korlátlan tagi felelısség miatt – vannak bizonyos korlátozások, illetve kizáró rendelkezések. Ezek a következık: 1. Természetes személy egyidejőleg csak egy közkereseti társaságnak lehet tagja, illetve csak egy betéti társaságnak lehet korlátlanul felelıs beltagja 2. Közkereseti és betéti társaság nem lehet másik közkereseti társaságban tag, illetve betéti társaságban korlátlanul felelıs beltag 3. Kiskorú nem lehet tagja közkereseti társaságnak, továbbá nem lehet beltagja, illetve korlátlanul felelıs kültagja betéti társaságnak. Alapítás: A bejegyzési kérelem elıterjesztésének határideje – ha törvény kivételt nem tesz – a létesítı okirat aláírásától, illetve elfogadásától számított 30 nap. Ha a cég alapításához hatósági engedély szükséges, a bejegyzési kérelem elıterjesztésének határideje az engedély kézhezvételétıl számított 15 nap. BT alapításakor minimum egy bel- és minimum egy kültagnak kell lennie, akik a társasági szerzıdésben is szerepelnek. A tagok vagyoni hozzájárulásai a betéti társaságnak (bt.) fogalmi eleme a társasági vagyon, amelynek tulajdonosa maga a társaság.Ez a társasági vagyon az alapításkor, a valamennyi tag által kötelezıen teljesítendı vagyoni hozzájárulásokból tevıdik össze. BT alapításához törvény nem ír elı minimális tıkenagyságot. Cégbejegyzési kötelezettség van, ami kb. 150 EUR. Jelezni kell egy üzlettárs be- és kilépését, a székhely megváltozását és egyéb változásokat a bíróságnál. A vállalkozás veszteség- illetve nyereség elosztásának szabálya a társasági szerzıdésben szerepel, vagy pedig a befektetés nagysága határozza meg. 400 000 EUR éves forgalom felett mérlegkészítési kötelezettsége van. A tagok vagyoni hozzájárulása pénzbeli hozzájárulásból, illetve a tagok által a társaság javára szolgáltatott nem pénzbeli hozzájárulásból áll. A nem pénzbeli hozzájárulás bármilyen vagyoni értékkel rendelkezı dolog, szellemi alkotáshoz főzıdı vagy egyéb vagyoni értékő jog – ideértve az adós által elismert vagy jogerıs bírósági határozaton alapuló követelést is – lehet. A tag munkavégzésre vagy más személyes közremőködésre, illetve szolgáltatás nyújtására irányuló kötelezettségvállalását nem pénzbeli hozzájárulásként figyelembe venni nem lehet. Nincs törvényi elıírás arra, mikor kell a vagyoni hozzájárulást rendelkezésre bocsátani, így errıl a tagok szabadon állapodhatnak meg. A társasági szerzıdésben azonban errıl mindenképpen rendelkezni kell, mert a vagyoni hozzájárulás rendelkezésre bocsátása idejének a meghatározása kötelezı minimális szerzıdési tartalom. A nyereség felosztása és a veszteség viselése Ha a társasági szerzıdés eltérıen nem rendelkezik, a nyereség és a veszteség a tagok között a vagyoni hozzájárulásuk arányában oszlik meg. Semmis az a megállapodás, amely valamely tagot a nyereségbıl vagy a veszteség viselésébıl kizár. Személyes közremőködés Betéti társaságokra jellemzı, hogy a tagok személyes közremőködéssel is részt vesznek a társaság tevékenységében, ez az úgynevezett személyes közremőködés egy törvény által biztosított lehetıség. Nem minısül személyes közremőködésnek az üzletvezetés és a képviselet ellátása, valamint a munkaviszonyban, illetve polgári jogi szerzıdés alapján történı munkavégzés. 8 Üzletvezetés Betéti társaság ügyvezetésére, a társasági ügyek vitelére az “üzletvezetés” kifejezést használjuk. Az üzletvezetés kizárólag a tagok egymás közötti belsı viszonyában értelmezhetı fogalom, ami lényegében nem jelent mást, mint jogkört a társaság operatív vezetésére, a társaság belsı ügyeiben való döntéshozatalra. Képviseleti jog Bt. esetén képviseleti (cégjegyzési) joga a beltagnak van. Fıszabályként a kültag nem csak a betéti társaság üzletvezetésére, hanem képviseletére sem jogosult. A kültag a társaság képviseletére kizárólag akkor jogosult, ha: •a társasági szerzıdés ezt tartalmazza, illetve ha •a szervezeti képviselı, illetve a tagok győlése a kültag részére képviseletre (cégjegyzésre) meghatalmazást ad; •a társaságnak nem maradt üzletvezetésre és képviseletre jogosult tagja, és annak bejelentéséig, illetve a jogvesztı határidı eredménytelen eltelte esetén (ami 6 hónap) a végelszámoló kijelöléséig a kültagot is a társaság üzletvezetésére és képviseletére jogosultnak kell tekinteni.. A társaság és a tagok felelıssége A BT is jogi személyiséggel rendelkezı társaság. A beltagoknak korlátlan a felelısségük, a kültagok pedig csak a befektetett tıke nagyságáig tartoznak felelısséggel, illetve ha valaki a BT-bıl kilép, még 5 évig felelısséggel tartozik. A társaság kötelezettségeiért elsısorban a társaság felel vagyonával. A társasági vagyont éppen azért kötelezı létrehozni, hogy megfelelı alapot teremtsen a társaság mőködéséhez, hogy a társaság kötelezettségeinek fedezetéül szolgáljon. Amennyiben a társasági vagyon a követelést nem fedezi, a társaság kötelezettségeiért (bt. beltagjai) saját vagyonukkal korlátlanul és egyetemlegesen felelnek. A (bt. beltagjainak) felelıssége tehát csak mögöttes, vagyis csak akkor áll be, ha a társasági vagyon nem volt elegendı a követelés kielégítésére. 9 Betéti társaság megszőnése: •határozott idıtartamú volt, és ez az idı letelt •az üzlettársak felszámolják •bírósági döntés miatt •üzlettársak indítványozása miatt •közgyőlési határozat miatt •életbe lép egy olyan ok, ami a társasági szerzıdésben szerepel Betéti társaság: jogutódlással (ez az átalakulás) vagy jogutód nélkül szőnik meg. A társaság jogutód nélküli, valamint jogutódlással (átalakulással) történı megszőnésének az elhatározásához a tagok győlésének, tehát a társaság valamennyi tagjának az egyhangú határozata szükséges. Mivel a társaság valamennyi tag konszenzusával jött létre, nyilvánvaló hogy nemcsak az így megkötött társasági szerzıdés módosítása, hanem a társaság megszőntetésének az elhatározása is csak a tagok egyhangú döntésén alapulhat. Végelszámolás Betéti) társaság jogutód nélkül megszőnik – a felszámolási eljárás, valamint a cégbíróság által történı törlés esetét kivéve -, végelszámolást kell lefolytatni. A végelszámolót (aki fıszabályként a társaság vezetı tisztségviselıi közül kerül ki, de lehet más személy is) a végelszámolás megindításáról szóló határozatában a tagok győlése jelöli ki, kivéve azt az esetet, amikor a megszőnésre a taglétszám egy fıre csökkenése miatt kerül sor, mert ilyenkor a végelszámolót a cégbíróság rendeli ki. A végelszámoló kijelöléséig a kültagot is a társaság üzletvezetésére és képviseletére jogosultnak kell tekinteni.

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