The commercial register is a directory that provides information about the merchants registered there. Registration is mandatory for all merchants, OHGs and corporations. Small businesses and freelancers are exempt from registration. However, the question arises as to whether an entry is generally useful, as the company name is automatically protected in this way. The commercial register is kept by the competent registry court and is freely accessible. However, unlike the land register, it does not enjoy public faith.
- The legal basis for the data in the commercial register can be found in the commercial code, in the GmbH law and in stock corporation law.
- A number of data are mandatory in the entry in the commercial register.
- The publicity of the commercial register is divided into two areas, the positive publicity and the negative.
The facts that must be registered
It is not up to a company to decide which data must definitely be entered in the commercial register. The legal basis for this can be found in the Commercial Code, in the GmbH Act and in stock corporation law.
The following information must be entered in any case:
- The company itself
- Names of the authorized representatives
- Registered office of the company and address as well as branches and branch offices with registered office and address
- Business object of the company
- Possibly limited partners
- Share capital
- legal form
- Further legal relationships such as conversion, insolvency proceedings or the planned dissolution
In addition to the facts that are subject to registration, there are also those that are capable of being registered. However, these are handled very restrictively by the registry courts and are only entered if they are classified as absolutely mandatory for the clarity of the company. An example of this is corporate contracts of a GmbH as a dependent company, although the GmbH Act does not provide any information about this. In addition, there are matters that may not be entered in the commercial register. One of them is, for example, the power of attorney, although it is of essential importance in business dealings whether the interlocutor is authorized or not. If there is a corporate contract with a controlled partnership, unlike a GmbH, there is no entry in the commercial register, which is defined on digopaul.
The Publications of the Commercial Register
Even if the commercial register, unlike the land register, does not enjoy public faith, it still has to convey a certain security. In this context one speaks of the publicity of the commercial register. This is divided into two areas, the positive publicity and the negative.
The positive publicity
All the facts that are mentioned in the commercial register count towards positive publicity. However, the positive publicity is classified as trust-destroying, since it is only based on facts and leaves out good faith. A merchant can invoke this after 15 days from the date of entry. In the context of legal transactions, the entered data form the basis, the person viewing it can rely on it or refer to it.
The negative publicity
The negative publicity, classified as trust-building, is based on the facts that are not entered in the commercial register. Anyone who inspects and does not find certain entries can assume in good faith that they do not exist either. This includes, for example, the lack of reference to an expired power of attorney.
Both forms of publicity only take into account the facts that are subject to registration, but not those that can be registered. Matters that can be registered do not fall under the protection of legitimate expectations, as regulated in Section 15, Paragraphs 1 and 3 of the Commercial Code. The facts of good faith do not apply if the person making the insight knows that missing facts do exist. If he knew about the above-mentioned deleted power of attorney, he cannot rely on the fact that it was not identified as such in the commercial register.
