Die fehlerhafte Bestellung von Aufsichtsratsmitgliedern in der Aktiengesellschaft

The study analyses the incorrect appointment of supervisory board members in stock corporations with particular regard to BGHZ 196, 195. Based on the case law of the Bundesgerichtshof, the author examines implications of incorrect appointments in view of supervisory boards’ responsibilities. There are many risks found, leading to considerable legal uncertainty for the affected stock corporations. The following analysis of existing approaches in case law and legal writings demonstrated, that those approaches are not suitable to harmonise the interests of concerned stakeholders. As a solution, the author creates a judicial intermediate procedure de lege ferenda based on the ex nunc-effect of defective resolution actions against the appointment of supervisory board members. Certain possibilities for action to achieve a suitable solution for stakeholders’ needs and interests shall be assigned to the competent court.