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Malice in common parlance means deliberate malice. The term seldom used in everyday language today is a constituent element in various laws , but where its meaning extends further.

Deceit in common usage

In common parlance called malice deliberate, malicious deceit . It is often understood as a malicious act to the detriment of others. In any case, such actions always appear to be motivated by low motives and therefore also morally reprehensible. Accordingly, Baruch de Spinoza means in his “Ethics”: “ Free people never act fraudulently, but always sincerely. "

Fraud in German law

In civil law malice and a. a constituent element of Section 123 Paragraph 1 Alt. 1 BGB (see fraudulent deception ), which grants those fraudulently deceived when forming their will a right to challenge their declaration of intent due to deception. A prerequisite is deception for the purpose of arousing or perpetuating an error (causal deception), but neither an intention to enrich the person who deceives nor damage to the property of the person deceived is required. Moreover, subjectively, malice does not require intent. Rather, the deceiver must know the inaccuracy of his information or even consider it possible. Likewise, there is malice if the agent, although he reckons with the possibility of incorrectness of his statements, makes incorrect assertions in the dark. Consequently, conditional intent already constitutes fraudulent intent . On the other hand, grossly negligent ignorance is not sufficient for the assumption of malice.

The burden of proof in the case of fraudulent intent is always borne by the person concerned; the burden of proof is generally not reversed. In the literature, one approach for the clarification of the case is the intention (motive) for which the person acts fraudulently, so the general procedural approaches are also recognized in the area of ​​fraudulent intent. If the person concerned cannot refute the fraudulent intent with evidence, very natural surroundings are also used, for example if the person who is accused of malice, from a purely legal or constitutional point of view, was not at all important in the specific case, here in a sense that To bend fraudulently in their favor.

The intention to act in a conditionally deliberate manner falls away from the facts given in nature. In the case of absolute natural clarity, the judge has to conduct the procedure according to § 291 and 294 ZPO. In jurisprudence and literature it says: Good faith on the part of the agent, which is based on a reliable, disclosed, verifiable basis of judgment, rules out fraud. Further details of the deception are usually committed out of the package; So if you act in good faith from the start, your future actions will target this.

A reversal of the burden of proof occurs in the cases only in the case of defects, i.e. visible, impossible self-created facts for which it is easy to prove. For the purchase of consumer goods in § 477 BGB, this is also the case in the above Cases permitted to a limited extent, so that there is also a time limit of six months in such a case. In the case of an accusation of fraudulent concealment, no prerequisites for a reversal of the burden of proof are taken as given, in the case of obvious defects i. d. R. already. In general, it is therefore true that the party has to bear the burden of proof that would like to enforce a legal form that is more favorable to it.

In this respect, the term fraudulent in legal parlance has a much more far-reaching meaning than is the case in general understanding.

In German criminal law, for example, Section 109a of the Criminal Code (evasion of military service through deception) requires fraudulent machinations based on deception as a constituent element.

Fraud in Swiss law

In Swiss criminal law, malice is a necessary element of fraud . The distinction between the punishable fraudulent misrepresentation and the unpunished simple lie is not easy. More on this in the Switzerland section of the Fraud article .

Individual evidence

  1. Palandt / Heinrichs, BGB, § 123, Rn 2.
  2. BGH NJW 01, 2326
  4. Judgment of March 16, 2012 V ZR 18/11 ZFIR 2012, 463, 465 f. Rn 24 u. 28.
  5. BGH , judgment of November 12, 2010, Az.V ZR 181/09.

See also

Web links

Wikiquote: Malice  - Quotes
Wiktionary: Malice  - explanations of meanings, word origins, synonyms, translations