Principal Liability

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Under firms Mr. liability (: criminal business Mr. adhesion even) are understood in German criminal and misdemeanor cases the omission liability of a superior, the authority to issue a rule person for failing to prevent crimes subordinate. If there are no special legal regulations (e.g. § 357 Paragraph 1 Alt. 3 StGB for the official or § 30 Paragraph 2, § 41 WStrG for the military area), the reasons and limits of the principal's liability have not been conclusively clarified despite recent rulings by the highest court.

Section 130 of the Ordinance on Administrative Offenses (OWiG) designates the breach of supervisory duties in businesses and companies as an administrative offense and provides for a fine of up to one million euros.

Whether the superior is also entitled to a guarantor within the meaning of Section 13 (1) StGB for the prevention of company-related crimes is the subject of controversial scientific discussions: With rulings of July 17, 2009 and October 20, 2011, the BGH increased the liability of the business owner for company-related crimes Basically recognized. However, it left open which actual circumstances are decisive for the justification of the guarantor position in the individual case and thus left the further specification of later judgments. On this case law of the 4th and 5th criminal division of the Federal Court of Justice, the VI. Civil Senate of the Federal Court of Justice contradicts its judgment of July 10, 2012. The liability of the business owner under criminal law was tacitly rejected without disclosing the tension with the case law of the criminal senates.

In the area of ​​civil tort law, the liability of the principal for the so-called vicarious agent is regulated in Section 831 of the German Civil Code ( BGB ), whereby the term principal liability is rarely used.

See also

literature

  • Fischer, StGB (commentary), 56th edition 2009, § 13, Rn. 38 with further references ISBN 978-3-406-58083-3
  • Spring, The criminal liability of business owners , (2009) ISBN 3-8300-4801-7
  • Gerhard Dannecker / Christoph Dannecker, The "distribution" of criminal liability in the company , JZ 2010, p. 981 (also comment on BGH judgment of July 17, 2009 - 5 StR 394/08 = BGHSt 54, 44)
  • Hans Kudlich , bullying as a company task? - The liability of a "foreman" in the event of internal bodily harm. (also comment on the judgment of the BGH of October 20, 2011, Az. 4 StR 71/11, HRRS 2012 No. 74 = NJW 2012, 1237 = NStZ 2012, 142), HRRS 04/2012, 177 [1]

Individual evidence

  1. ↑ Caracas: Responsibility in international corporate structures according to § 130 OWiG - Using the example of bribery in business dealings with no punishments abroad, Nomos Verlag, Baden-Baden 2014, ISBN 978-3-8487-0992-2 ; also in CCZ 2015, pp. 167 ff. and 218 ff.
  2. ↑ Az. 5 StR 394/08 and Andreas Ransiek , On the criminal responsibility of the compliance officer, Die Aktiengesellschaft (AG) 2010, p. 147
  3. ↑ Az. 4 StR 71/11
  4. ↑ Rn. 14 of the judgment
  5. ↑ Az. VI ZR 341/10
  6. ↑ Christoph Dannecker, The Consequences of the Corporate Management's Criminal Liability for the Liability of Legal Entities, New Journal for Commercial, Tax and Corporate Criminal Law (NZWiSt) 2012, p. 441