Whereas previous discussions mainly focused on the advantages and disadvantages of monistic and dualistic stock corporations, the supervisory board is now becoming increasingly important for the actual management of the stock corporation. It is changing from a static control body to a strategic partner of the management board. In the academic literature, this is reflected in the term "co-entrepreneurial" supervisory board.[1] The question of corporate responsibility justifies the expansion of the discussion on corporate law to include ethical questions about the role of the supervisory board.
The research question is: How should the role of the supervisory board as a strategic partner of the management board be designed to contribute to good corporate governance?
According to the German Stock Corporation Act (Aktiengesetz), a stock corporation consists of a shareholders' meeting, a management board and a supervisory board. The shareholders – as the general meeting – bear a financial risk in the amount of their shareholding. However, they have only limited rights to intervene in the strategic decisions of the company's management. To protect the shareholders, the management board is subject to ongoing control by the supervisory board.
Society, politicians and legislators are increasingly demanding responsible leadership and economic action in the sense of corporate social responsibility (CSR) from companies. These demands are new to this extent[2] and will become increasingly important in the future.[3] They are initially the responsibility of the management board.[4] The management board and the supervisory board are also jointly responsible for ensuring successful management and effective monitoring of the company through good corporate governance.[5] However, corporate scandals and their consequences, such as a drop of the share price, are often attributed by the general public to inadequate supervision of the management board.[6] However, the supervisory board has only a limited influence on corporate (mis)decisions. In the modern corporate constitution of the stock corporation, its position must therefore be designed in such a way that it results in good corporate governance.
One way of implementing this is to use ethical orientation aids, such as Suchanek's ethical compass.[7] The model represents an investment heuristic and could enrich previous jurisprudential approaches with an ethical-normative approach. The ethical compass assumes that the economic activities of companies or investing in a common future necessarily require reliability of mutual behavioral expectations. The key element is the presumption of doing no illegitimate harm.
First, the role of the supervisory board in the current corporate constitution of the stock corporation is elaborated by means of literature research ("actual"). Second, the objective is defined ("target"). It comprises an approach to good corporate governance that addresses deficits identified in the analysis of the current situation and is conducive to good corporate governance. In this way, the future function of the supervisory board regarding corporate governance and CSR is to be worked out. Finally, a suitable implementation measure is to be identified by way of argumentation to close the desideratum between "actual" and "target".
The ethical compass is hereby in focus. The model will be theoretically differentiated and subjected to a practical test. The aim is to evaluate whether the model is suitable for implementing the reorganization of the supervisory board that has been developed. For this purpose, a workshop with supervisory board members will be designed and conducted. The participants will receive an orientation aid for decision-making in application-related situations based on a simulation of supervisory board committee decisions. In two questionnaire surveys, the decision-making behavior of the interviewees is recorded before and after the workshop. Finally, it is deduced whether previously conveyed content results in a change in behavior in favor of good corporate governance.
Literature
Goette, Wulf/ Habersack, Matthias/ Kalss, Susanne, Münchener Kommentar zum Aktiengesetz. Band 2 (§§ 76–117, MitbestG, DrittelbG), 5th Edition, Munich, 2019
Fleischer, Holger, Corporate Social Responsibility. Vermessung eines Forschungsfeldes aus rechtlicher Sicht, AG 2017, 509 ff.
Hopt, Klaus/ Roth, Marcus, Großkommentar zum Aktiengesetz, Band 5 (Der Aufsichtsrat: Aktienrecht und Corporate Governance. Sonderausgabe aus dem Großkommentar zum Aktiengesetz. §§ 95 bis 116 AktG), 5th Edition, Berlin, 2019
Hüffer, Uwe/Koch, Jens, Kurzkommentar zum Aktiengesetz, Band 53, edited by Jens Koch, 14th Edition, Munich, 2020
Lutter, Marcus/Krieger, Gerd/Verse, Dirk, Rechte und Pflichten des Aufsichtsrats, 7th Edition, Berlin, 2020
Suchanek, Andreas, Die Bedeutung eines ethischen Kompasses für das Nachhaltigkeitsmanagement, in: Herausforderungen für das Nachhaltigkeitsmanagement, Globalisierung – Digitalisierung – Geschäftsmodelltransformation, Arnold, Christian/Keppler, Sonja/Knödler, Hermann et al. [Hrsg.], 35 ff., 1st Edition, Wiesbaden, 2019
Welge, Martin K./Eulerich, Marc, Corporate-Governance-Management. Theorie und Praxis der guten Unternehmensführung, 2nd Edition, Wiesbaden, 2014
Werder, Axel von, Ökonomische Grundfragen der Corporate Governance, in: Hommelhoff, Peter/Hopt, Klaus/Werder, Axel von, Handbuch Corporate Governance, 2nd Edition, Cologne, 2009, 3 ff.
[1] Lutter/Krieger/Verse, Rechte u. Pflichten, Rz. 58; Hüffer/Koch/Koch § 111 Rz. 13.
[2] Werder, Hdb CorpGov, 7 f.; Großkommentar AktG/Hopt/Roth, § 95 Rz. 17.
[3] Fleischer, AG 2017, 509 ff., 509.
[4] MüKoAktG/Spindler, § 76 Rz. 81.
[5] Präambel des Deutschen Corporate Governance Kodex i.d.F. v. 16.12.2019; MüKoAktG/Spindler, Vor § 76 Rz. 1.
[6] Großkommentar AktG/Hopt/Roth, § 95 Rz. 18; Welge/Eulerich, CGM, 322.
[7] Suchanek, Nachhaltigkeitsmanagement, 35 ff.
