Withholding and embezzling wages
Withholding and embezzling wages is the official heading of the German criminal offense regulated in Section 266a of the Criminal Code.
The act of paragraph 1
The subject of the offense is the withholding or embezzlement of wages , whereby in paragraph 1 the employee shares to be paid to the social security agency are meant.
Legal interest
Protected legal interest is not the employee's interest in getting his wages paid, but the interest of the solidarity community in securing social security . Accordingly - as expressly regulated in the current version of the law - criminal liability does not depend on whether wages were paid at all. Even if the employee agrees not to pass on his shares to social security, this does not change anything in terms of criminal liability.
On the other hand, except in the case regulated in Paragraph 3 , Section 266a of the Criminal Code does not fundamentally affect the employee's right to wage payments . Here the employee is no more worthy of protection than any other creditor of a claim .
Perpetrator
Section 266a of the Criminal Code is a so-called special offense that (apart from the case of Paragraph 3; see below) can only be committed by one employer . The organs of associations according to the principles of the liability of representatives regulatedin § 14 StGB, as well as the employers of homeworkers due to the explicit regulation of § 266a Abs. 5 StGBare equated with the employer. In the case of a GmbH , the managing director authorized to represent is liable. Its responsibility begins with the order. But the actual managing director is also a capable perpetrator, but not the bogus managing director, who lacks any competencies to influence the legal and economic development of the GmbH. If several managing directors are appointed, internal rules of jurisdiction can lead to a limitation of criminal liability by converting the obligation to act into a monitoring obligation. In economic crisis situations, the obligation to monitor can become an obligation to act again.
Assimilated acts
In certain cases, Section 266a (2) of the Criminal Code also penalizes failure to pay employer's contributions. This regulation was only added to the regulation with the amendment of July 23, 2004. It closed a loophole in the law that ultimately made those perpetrators who had previously not registered any of their employees for social security, i.e. who had run their business entirely through the use of illegal workers, better off than those who had registered at least some of their employees.
The criminal act described by § 266a para. 1 of the Criminal Code in accordance with § 266a para. 3 of the Criminal Code equivalent to the actions of the person who is not an employer otherwise parts of the salary which he has to pay for the employee to another, retains, but the other pays and fails to notify the employee ... of the failure. In this variant of the offense, the employee's assets are also indisputably the legal interest protected by the criminal law.
Solvency
A criminal liability according to § 266a StGB presupposes the possibility of being able to make the payments at all. However, the jurisprudence places strict requirements on ensuring performance . The transfer of employee shares has absolute priority over other payment obligations of the employer, for example the settlement of supplier invoices and even the payment of net wages.
Until a decision by the Federal Court of Justice in May 2007, it was controversial in case law to what extent the bodies authorized to represent corporations are obliged to pay social security contributions even in the company's financial crisis. Now the following applies: Because the managing directors of a GmbH, the board members of a stock corporation , the directors of a Ltd. and managing a limited , which do not personally liable limited partners has, according to § 15a InsO after the occurrence of payment inability or excessive debt in bankruptcy legal sense ( § 17 , § 19 must provide InsO) within three weeks at a bankruptcy petition and by then no more payments from the company assets, the managing directors or board members are exempt from the obligation under Section 266a (1) StGB during the period for filing for insolvency .
Legal consequence
The law provides as a legal consequence for the employer in the cases of Section 266a Paragraphs 1 and 2 StGB imprisonment of up to five years or a fine ; in the case of Section 266a Paragraph 3 StGB, the law regulates the employer to pay the contributions does not forward, imprisonment for up to one year or a fine.
In particularly serious cases, the law provides for imprisonment from 6 months to 10 years.
Section 266a of the Criminal Code is a protective law within the meaning of Section 823, Paragraph 2 of the German Civil Code , so that anyone who realizes the offense of this Criminal Code can also be sued under civil law for the damage caused thereby.
Mitigation of sentences
Section 266a (6) of the Criminal Code gives the court the opportunity to refrain from punishment if the offender notifies the collection agency in writing of the amount of the withheld contributions at the due date or immediately after this point in time and explains why it is not possible for him to pay these contributions on time is.
Refraining from punishment is mandatory if the offender also pays the withheld contribution retrospectively within a reasonable period to be set by the collection agency.
This regulation takes into account the fact that acts committed in accordance with Section 266a of the Criminal Code are regularly related to a crisis in the company or other significant financial difficulties for the employer.
literature
- Florian Bollacher: Withholding social security contributions. An examination of current questions on Section 266 a (1) of the Criminal Code, in particular on the problem of neglected contribution payments in the corporate crisis . Nomos, Baden-Baden 2006, ISBN 978-3-8329-2046-3 .
- Patrick Wüchner: Withholding social security contributions from the employee. A consideration of Section 266a (1) StGB with special consideration of the economic corporate crisis and the effects of insolvency law . Publishing house Dr. Kovac, Hamburg 2010, ISBN 978-3-8300-4985-2 .
- Marcus Loose: Withholding employer contributions to social security in accordance with Section 266a (2) StGB. An investigation into the application problems due to the structural reference to Section 370 (1) AO and the adoption of the "withholding" of contributions from Section 266a (1) StGB . Duncker & Humblot, Berlin 2017, ISBN 978-3-428-14961-2 .
Web links
- Björn Gercke / Ulrich Leimenstoll , Withholding social security contributions (§ 266a StGB) - A guide for practice [1]
- Petra Wittig , On the interpretation of an unsuccessful fact - The new case law of the BGH on § 266a Paragraph 2 StGB and its consequences for § 266a Paragraph 1 StGB [2]
