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would constitute an offense against that "diligence of a good and
conscientious business manager." The facts demand that the management of
affairs be distributed among the Vorstand members and that the responsibility
of the individual be limited.
The law imposes upon the Vorstand certain
duties which cannot be delegated to individual members. Among them is the
drawing up of the annual balance sheet (art. 125), the compilation of the
annual report (art. 128), accounting (art. 82), and the compilation of reports
to the Aufsichtsrat (art. 81). Even in this connection, however, a distinction
should be drawn with regard to the degree of responsibility and liability of
individual Vorstand members. Thus, a higher degree of responsibility for the
details of financial policy will devolve upon these Vorstand members who have
been put in charge of the accounting department of a firm than upon the other
members who have been put in charge of problems connected with commerce or
production, let alone those who are engaged in scientific research.
Apart from the cases in which, as mentioned above, the law imposes
certain duties upon the Vorstand as a whole, the management of affairs may
legitimately be distributed among the Vorstand members in accordance with legal
practice, so that, in effect, every Vorstand member is solely responsible for
the sphere of business entrusted to him, individual members being precluded
from interfering with the spheres of business of other members. But that does
not mean that Vorstand members cannot in any way be held responsible for
spheres of business other than their own. They are responsible for mutual
supervision and, in cases where the Vorstand itself distributes the management
of affairs, for the choice of the right man. But where the bylaws, including
the distribution among the Vorstand members of the management of affairs, are
drawn up by the Aufsichtsrat, and where the latter appoints individual
Vorstand members for the various offices, the Aufsichtsrat, and not the
Vorstand members, will be held responsible for the choice of the right man.
Thus, the division of responsibility for the management of business
affairs means that the duties of individual Vorstand members, with respect to
spheres of business other than their own, assume a purely supervisory character
(RGZ vol. 98, p. 100). A division of labor does not relieve the individual
Vorstand member of this general duty, i.e., to supervise the other Vorstand
members (Weipert commentary on corporation law, art. 84, footnote 21). Such
obligatory supervision cannot, however, be held to include detailed supervision
of the activities of the other Vorstand members or interference with business
management. That would in fact amount to rescinding the perfectly legitimate
authorization |
407 |
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