Accessory
Accessoryity (adjective: accessory, from the Latin accedere , 'to enter') is a general legal term that characterizes the dependence of the existence of one right on the existence of another right. In civil law the question of accessory nature arises with security rights, in criminal law with participation in the crime .
Accessory in civil law
Accessoryity, sometimes also referred to as “leaning” in legal parlance, can encompass all stages of the two rights, from creation to continuation to transfer or expiry. The stronger the accessory, the cheaper it is as a rule for the debtor.
In particular, the link between security and secured claims is of practical importance, for example when making a reservation .
Lending
In the credit system, accessority, in contrast to fiduciarity, is the legally prescribed close link between a loan security and a (credit) claim. In these cases, the law always requires the loan security to be dependent on a loan and vice versa.
Legal bases
The German civil law regulates accessory loan security finally in the BGB . The guarantee (§ § 765 ff. BGB ), the mortgage (§ § 1113 ff. BGB) and the pledge (§ § 1204 ff. BGB) are listed. The legal definition for these three types of loan collateral contains the passage "[...] because of a claim to which he is entitled [...]" or "[...] to secure a claim [...]". The law thus elevates the purpose of these types of security to the legal basis ( cause ) for their creation, their continued existence and their elimination (security purpose). It is therefore a legal security agreement , so that the requirements for a contractual security agreement may be lower. Therefore, one can speak of “born” loan collateral because the law has expressly provided it as collateral.
Accessoryity represents a breach of the principle of separation , according to which the obligation and disposition business must always be viewed separately from one another and the nullity of the obligatory business, for example, does not automatically affect the disposition business of the same contract and vice versa (principle of abstraction ). In the case of accessories, the law changes the separation between real and contractual obligations and assigns the secured claim to the fact of a right in rem .
Characteristics of ancillary loan collateral
However, the accessory is not limited to the statutory security purpose. Due to its strict binding effect, it consistently demands that when a claim secured with the above-mentioned collateral is transferred, the credit security must be transferred together with the claim ( Section 401 BGB) so that the close link between claim and security is maintained. The accessory credit security must therefore not be assigned without an underlying claim, the claim not without an accessory security, they “stick” together. In § 401 BGB only the accessory securities are mentioned as ancillary rights of the claim that are subject to assignment ; non-accessory rights are not mentioned. This strict connection between the transfer of the claim and the simultaneous transfer of the mortgage to a new creditor is also required under property law in Section 1153 (1) BGB.
The law describes exactly what has to happen if the creditor demands payment from the security provider (surety, property owner in the case of a mortgage). If the surety or the property owner (who only provides security) pays to the obligee, by law ( cessio legis ) the claim of the obligee against the debtor is automatically transferred to the guarantor without the need for a special contractual assignment ( Section 774 (1) BGB for the guarantee, Section 1143 (1) BGB for the mortgage). It is a legal assignment of claims which inevitably occurs when the security provider pays. This allows these security providers to defend against enforcement by the obligee in their own assets and at the same time try to collect the claim that has been transferred to them from the debtor themselves.
If the loan is finally repaid (and the purpose of the security under the law of obligations is no longer applicable), the ancillary security rights are no longer available to the obligee. In this case, the guarantee expires due to the binding effect of the right on the lost claim. The same applies to the right of lien with third party effect according to ( § 1252 BGB), because it becomes the owner's lien . The mortgage turns into an owner's mortgage ( § 1163 BGB) when the claim is lost. This is a significant difference to non-accessory ("abstract") loan collateral. Since these are not based on a statutory security purpose, they must be expressly transferred back to the security provider on the basis of the security contract agreed under the law of obligations .
Accessory in criminal law
In criminal law , the principle of (limited) accessority determines that the criminal liability of a participant ( instigator , assistant ) depends on the criminal liability of the main offense. However, this dependency is limited to the extent that it does not matter whether the main perpetrator can also be accused of guilt . It is therefore sufficient that the main offense is a factual and unlawful act , even if it was committed without guilt ; Participation in the unlawful crime of an incapacitated person is therefore punishable. This is expressed in § 28 , § 29 StGB .
In criminal law, accessoryity comes into play, particularly in the area of environmental criminal law ( Section 324 ff. StGB). The criminal liability there often depends on the fact that the objectively given environmental pollution caused by the perpetrator (usually through active action or possibly also through omission) is not covered by a public law permit. Conversely, the person must remain exempt from punishment insofar as he can invoke an effective permit ( Section 43 VwVfG ). In this respect, one speaks of the “administrative (act) accessory” of criminal law. A prime example of a lack of accessority in criminal law is the (forbidden) "participation in suicide" (Section 78 of the Austrian Criminal Code). In particular, the legitimation of a comprehensive prohibition of participation is hotly debated, while the main act, suicide, is not punishable.
literature
- Carl Creifelds : Legal Dictionary. Edited by Klaus Weber. Edited by Dieter Guntz. 19th revised edition. Beck, Munich 2007, ISBN 978-3-406-55392-9 , key words: accessory, guarantee, mortgage, owner mortgage, lien.
Web links
Individual evidence
- ↑ Hans Hermann Seiler : Past and present in civil law , Heymanns, Cologne 2005, ISBN = 978-3-452-25387-3, p. 263.
- ↑ Peter von Wilmowsky : Security rights "General part": structural features of a security right University of Frankfurt a. Main, 2014
- ↑ Dieter Medicus , JuS 1971, 497.
- ↑ In the case of the surety, of course, from the surety's point of view, "[...] fulfillment of the obligation [...]"
- ^ Jan Wilhelm: Property Law. 2002, p. 787.
- ↑ Jens Thomas Füller: Independent property law? 2006, p. 174.
- ↑ However, according to the legal concept of § 401 BGB, the assignor is obliged under the law of obligations to transfer non-ancillary rights in case of doubt; BGH NJW 1985, 615
- ↑ in the case of pledging, the legislature has decided on a different solution: the creditor should satisfy himself directly by realizing the pledged item
- ^ Ingo Albert: Basics § 28 University of Freiburg , 2015
