Strawperson
Straw man ( straw plural people or nominees ) are commonly called persons that appear for third parties who do not wish to appear or be allowed. Especially in legal relations is at straw men to people who engage as a favor not to conclude transactions for third parties or to take over functions for third parties who want to become, themselves or.
History
The word goes back to an ancient Roman ritual of Argei, in which the identity of the MAI straw dolls were thrown into the Tiber. Every year actually had to be overthrown by a Greek and a Greek from the bridge into the Tiber. Because a human sacrifice could not be used, they cast of rushes woven figures into the water. Even today we speak of the straw man, if someone is a false front for appearance. Another derivation of the term is in the novel called The judges of the King of Sandra Lessmann. According to their research, the term originates from the England of the 17th century, where there were people who - False statements made in court - for money. As a distinctive mark these people had put straws in the buckles of her shoes. Hence the name is said to have derived.
Legal Issues
Legal relations of the straw man is an advanced person who acts in his own name but on behalf of the background man. The man behind him is a straw man regularly then if he wants to deceive in legal transactions, or wants to achieve in this way legal consequences which he can not reach, for example because it does not meet constituent elements or wants to avoid legal or contractual barriers. The straw man closes the deal in the external relationship from though, are the legal consequences but in the internal relationship to the man behind further. This is therefore a special case of fiduciary law Business.
If straw men are advanced, can - but need not - be legally controversial and seize the courts. The highest courts (especially BGH and BFH ) had often to deal with the consequences of a straw man transactions and functions.
Reasons for straw men
Straw men are particularly advanced as those interested this can not perceive itself actually in the business ( criminal record, lack of business license, legal prohibitions ). The involvement of a straw man and then leads to a legally effective contract, even if the other business partner knows the straw man. The straw man signs a contract in his own name but on behalf of the backer, which enjoys the financial result.
Straw man as a director of a GmbH
Straw men are often found in corporate law. They act as a founder or CEO to any society for someone who can not even appear in this function. So 2 Limited Liability Companies Act clarifies example in § 6 paragraph who must not be managing director of a GmbH. These include in particular Persons authorized an occupation or profession, a trade or a branch of industry by a judgment or an official administrative decision not to exercise, were convicted of filing for insolvency or other insolvency offenses or have been sentenced to a term of imprisonment of at least one year. These people need to use straw men that meet the statutory requirements.
Few, however, aware of the risk they take it. For the fulfillment of 1 StGB § 266a para recorded in employers' obligations of the straw man has to stand 14 of the Criminal Code pursuant to §. Moreover, the straw man meet as managing director of a GmbH in relation to society of criminal penalties fiduciary duties under § § 35, § 43 Limited Liability Companies Act, especially in damage to the Company's assets.
The acting as de facto CEO straw man take the same legal obligations as the registered in the commercial register ( formal) managing director, if he perceives the manager function " in maßgeblichem scope ". For this, the straw man of the eight classic features in the core area of the Board must meet at least six.
Straw man as the founder of an AG
Founder of a corporation is, who found the Articles of the Company and taken over at least a stock has ( § § 28, § 280 para 3 AktG). It also acting for the real founder straw man is a legal obligation. Straw man in this context is a person who has been involved in its own name, but on behalf of the founding of the AG and undertakes to exercise the rights acquired from participation solely on the instructions of the client. The emitted by the straw man in the founding treaty declarations meet regularly not the facts of the apparent business, for the will of all founders is seriously directed to carry out an effective foundation.
Straw man in industrial law
In commercial law is regarded as a straw man, who is advanced to conceal the actual conditions as a trader, the commercial in question is in reality but operated by another. This occurs, in particular, when the man behind the formal ( possession of a permit, license or registration in the trades ), or even the material ( unreliability, lack of master craftsman ) can not satisfy the requirements of business activity or wants. Pursuant to § 35 Industrial Code may be taken against both the straw man and against the background man. In the legal sense, both the straw man as well as his backer as professionals apply. The straw man is under trade law referred to as " anytime controllable puppet " by the Federal Administrative Court.
Straw man as guarantor
Not infrequently, let people out of complacency on one, take care of business for third parties to enter into such guarantees or other commitments. Will the used as a straw man CEO the guarantee for bank debt "his" GmbH, a bank may assume that this is economically reasonable, own responsibility solely of him reasons, as long as their is not known to the contrary. While a straw man - shareholder has no interest of its own, must, however, be treated like a real partner because it occurs so. Developed by the Supreme Court for the moral principles of guarantees do not apply if a guaranteeing limited partner only acts as a straw man.
Straw man in Securities Law
According to § 14 Section 1 No. 1 WpHG insider securities may not be purchased or sold. Is recorded of which also act as a representative, indirect agents (" straw man " ) or commission. The differences resulting from the formal to the straw man belonging to minority voting rights are attributed to the person on whose behalf the shares are held in the internal relationship ( § 22 Section 1 No. 1 WpHG). The interposition of a straw man is therefore not inadmissible for himself, but is considered fiduciary relationship within the meaning of that provision. If a domestic issuer either 5% or 10% is reached, exceeds or falls below itself or through a straw man in own shares below the thresholds, he or she must publish ( § 26 Section 1 Sentence 2 WpHG).
Sham transaction
According to the judgment of the Bundesgerichtshof of October 22, 1981 straw man transactions are in principle of fictitious trades according to § 117 BGB to distinguish. Since the state of success is usually intended seriously by both sides at a straw man business, so it is not missing on mutual business will, is one such fully effective. What matters is whether the parties want to really bring about the legal consequences of the agreement, ie whether the straw man be personally authorized by its business and is committed or whether the contractor is solely at the man behind. The straw man wants to knowingly let that occur with a contract connected legal consequences. The advancing a straw man not made in the legal transactions then a sham. Rather, the straw man business is seriously intended, therefore, such a business is settled case law of the BGH for the straw man is legally binding.
In a sham transaction, the parties want to consenting cause only the outward appearance of concluding a legal transaction, in contrast, associated with the transaction legal effects should not occur. Only if agreed between the straw man and its counterparty that claims for and against the straw man are excluded, there is a - before a wash sale - vain. Under these conditions, are doing business with a straw man according to § 117 para 1 BGB void. This is for example the case if the other party wants to conclude the deal exclusively with the man behind, or it is a person-related transaction, and will bear no straw man by nature. But even if the other party and the straw man out amicably from the fact that the legal effects just should not happen in the person of straw man or straw man associated with the right financial obligations do not want to take on to the outside and to the contract is aware, a sham transaction may be assumed be. A sham transaction is pursuant to § 117 para 1 BGB invalid, but is concealed, in truth desired business pursuant to § 117 para 2 BGB effective. Only by the light of business ie not the straw man, but his rear man is entitled and obliged.
Others
The term is commonly used in many cases; missing, for example, to play cards, a third player, so there are additional rules for " Skat with a straw man."
All straw men of the La Cosa Nostra had lost their Las Vegas casino license quickly and were entered in the Black Book - as their principal. One of the most famous men of straw in Las Vegas was, inter alia, the real estate agent Allen Glick.