. NMT06-T0177
Volume VI · Page 177
| A number of German terms are not readily
translated into precise English equivalents, a fact with which the participants
in the trials were faced from day to day. This is particularly true in the
field of German business enterprises and German corporate organization, and
confusion may be avoided here by a special note concerning three types of
German business enterprises frequently involved in the Flick case: the German
"Aktiengesellschaft" (abbreviated as "A.G."), roughly translated as a stock
corporation; the "Gesellschaft mit beschraenkter Haftung" (abbreviated as
"G.m.b.H."), literally translated as a company with limited liability; and the
"Kommanditgesellschaft" (abbreviated as "K.G."), corresponding essentially with
the American limited partnership. The "A.G." and the "G.m.b.H." are juristic
persons in German law, whereas the "K.G." is not. The conduct of the defendants often was related to their position as members of the governing boards of a German stock corporation (A.G.). An "A.G." has two governing boards, one charged with general supervision and the other with actual management. These two boards are the "Aufsichtsrat", often translated as the "supervisory board of directors" or merely as "supervisory board", and the "Vorstand", often translated as "managing board of directors" or merely, as "managing board." The "Aufsichtsrat" (supervisory board) is a supervisory board of directors elected by the stockholders at the annual meeting generally called the "Generalversammlung" (before 1937) and the "Hauptversammlung" (after 1937). With some notable exceptions, the members of the Aufsichtsrat appear to correspond functionally with those members of the board of directors of a major American corporation who are not members of the executive committee and who do not participate in the actual or day to day management of the business. The formal rights and duties of the Aufsichtsrat under German law include the election, supervision and removal of the members of the Vorstand; the general of the management of the enterprise by the Vorstand; the right to examine and audit books and accounts; the calling of shareholders' meetings; and the representation of the corporation in dealing with the Vorstand. Of course, the extent to which the Aufsichtsrat in practice exercises these powers to influence the activities of an A.G. depends upon a number of factors, including for example, who owns or controls the stock. The Vorstand (managing board) is the executive board of directors which undertakes the actual management of the corporation generally and ordinarily represents the corporation In its dealings with others. The members of the Vorstand can best be compared functionally with the principal officers of |
