Evasion of the law
Avoiding the law ( Latin fraus legis ) is behavior that does not violate the wording of a legal norm , but does violate its meaning. The legislature did not want a certain result, but did not expressly forbid it either.
General
From early Roman law, legal disputes primarily arising from unwritten customary law but also from codified law (for example, according to Tables XII ) were not only to be negotiated strictly according to the prescribed procedural formulas , but also to be interpreted strictly according to their wording. Questions about the sense and purpose of a standard were not taken into account from the start. This opened up the imagination for bypass deals and gave the possibilities great scope. Mainly one managed by means of sham deals .
When an objective doctrine of interpretation developed at the end of the second half of the 19th century , the way in which circumvention deals changed increasingly. It had become possible to derive and interpret legal transactions from the objective sense and purpose of the norm. The pandectistic dogmatics influenced the German Civil Code . In this context, laws still aim to discipline the contracting parties and prescribe more or less specifically what is allowed and what is prohibited. Are legal acts prohibited by laws that must sanction match circumvention of the law with the legal consequence of bypassed standard. The only way to circumvent the law is prohibition laws . Prohibition laws are all mandatory, i.e. not contractually indispensable, legal norms which prohibit the undertaking of a legal transaction (which is fundamentally possible under the legal system) with regard to its content, to a success disapproved by the legal system or to the special circumstances under which it is carried out becomes. A violation of a prohibition law is to be assumed even if it is to be circumvented. With a circumvention transaction, the contracting parties - who actually want an offense that is prohibited by law - try to bring about the same economic result through an offense that is not covered by the wording of the law.
Demarcation
In the case of all legal norms, the first question that arises is whether and to what extent they can be "circumvented" or must meet certain formal and substantive requirements so that their avoidance becomes a circumvention. Anyone who circumvents a law usually wants to avoid its legal consequences. To do this, he uses design options that lead to a circumvention agreement or a circumvention transaction. An inadmissible circumvention of the law exists if a mandatory legal norm is circumvented or applied in an unlawful way through an objective circumvention act or a norm-free area is created. The prohibition of circumvention transactions has long been a generally recognized legal principle. According to the case law of the Federal Court of Justice , the law is circumvented if the purpose of a legal transaction is to prevent the occurrence of a legal consequence that the law provides for such transactions; avoidance is not required.
If, on the other hand, only the wording of a law is circumvented, but its standard purpose is complied with, this is a permissible avoidance of the law . It is the opposite of evading the law. Avoidance of the law has no legal consequences, so that transactions based on avoidance of the law are fully legally effective.
Legal consequences
Circumventing the law cannot have any legal consequences if it does not also constitute a violation of the law. To put it more precisely, the law is being circumvented if the scope of a standard does not apply, but the objective of the standard is violated. If the wording of a standard is not violated, the interpretation must ask which goal should be pursued with this standard. The meaning and goal of a regulation is the area of life it covers, which can be determined through interpretation.
Legal consequences only occur if there is a violation of the law. The legislature has planned the possibility of circumventing the law and therefore provided for the nullity of legal transactions that violate a prohibited transaction. If the circumvention transaction fulfills the standard purpose of a regulation, the Prohibition Act intervenes with the consequence that the circumvention transaction according to Section 134 BGB becomes null and void . The law also does not tolerate circumvention of consumer protection provisions. For example, § 312i BGB provides for consumer protection to be applied even if there is a circumvention through "other arrangements". In the case of Section 475 (1) sentence 2 BGB, circumvention is to be assumed if the chosen design serves to exclude or restrict the application of the intended consumer protection. These are special provisions for specific types of legal transactions in which consumer protection cannot be circumvented. Since the possibility of bypassing must also be taken into account when the legal provisions become less specific, a distinction is made between different types of prohibition laws.
species
With regard to the uniqueness of prohibitive norms, a distinction is made between the general and the special statutory circumvention prohibition.
General prohibition of circumvention
A general prohibition of circumvention exists if the purpose of a legal norm is thwarted by other legal structuring options. In the case of a general ban, the purpose of a legal norm must be determined through interpretation. If a legal transaction is neither a sham transaction nor a special statutory circumvention prohibition, the general circumvention prohibition applies. An - inadmissible - circumvention of the law occurs when the purpose of a mandatory legal norm is thwarted by the fact that other legal structuring options are misused.
Special statutory circumvention prohibition
In the case of a special statutory prohibition of circumvention, the legislative will to enforce mandatory regulations is expressly declared. Special legal prohibition norms are in particular § § 306a , § 312i , § 475 Paragraph 1 Clause 2, § 506 or § 655e BGB. These regulations are so specifically tailored to a specific situation that an interpretation in individual cases is not necessary. Here, too, the prerequisite is that prohibition laws must be mandatory and cannot be waived.
Other types
Genuine and fake law circumvention (creeping into contact) occur in connection with the application of international private law . In the case of spurious law circumvention, only the wording of the norm in question is circumvented, but not its meaning. The engaged couple marry abroad in order to circumvent marriage prohibitions under German or foreign law. “Marriage paradises” are therefore typical examples of a spurious legal evasion. In the case of genuine circumvention, however, the nationality must be changed, the usual place of residence or an illegal choice of law must be made, or the place of conclusion of a contract must be changed. A typical example of a real circumvention was the loan agreement fee (“loan tax”), which was abolished in Austria in January 2011, a tax that was levied when a loan agreement was concluded. If the place of conclusion of the contract was moved to Germany, the credit tax was not payable. Here the “bypassing” has to “wiggle” around the legally targeted issue. In German international private law there is no general regulation of the circumvention of the law.
If both contracting parties have deliberately worked together to circumvent an undesirable legal regulation, a mutual circumvention exists. However, if only one of several contracting parties has contributed to the circumvention of the law, this is a unilateral circumvention .
Circumvention in foreign law
Justus Wilhelm Hedemann wrote in 1950 that the transfer by way of security , which was not expressly regulated in the BGB, was "read out of the law in a bold thought detour" and was "a perfect example of how to circumvent the law". The Imperial Court of Justice had already affirmed their admissibility in 1880 because their legal success was actually intended and this was confirmed later on November 8, 1904 after the BGB came into force. The constant jurisprudence of the BGH is also based on the legal validity of the transfer by way of security in Germany. While assignment by way of security is also recognized as permissible in Switzerland, in Austria it is still regarded as an inadmissible circumvention of the lien. In Switzerland and Austria, the circumvention doctrine does not differ significantly from the German one. In Switzerland there is a widespread opinion that circumvention of the law is a subset of the abuse of law, which is regulated in Art. 2 Para. 2 ZGB. In France the law is circumvented (“fraude à la loi”) only if three conditions are met. In common law , the evasion of law is completely unknown.
Avoidance in tax law
One focus is the avoidance of the law in tax law, where § 42 AO makes it clear that tax law cannot be bypassed if legal structuring options are misused . However, in the strict sense of the word, this is not a circumvention of the law. If a certain process is not taxable, there is legal tax avoidance . If, on the other hand, there is a tax liability, it cannot be avoided, but the parties involved could at most disguise the existence of the taxation requirements; this is criminal tax evasion , but not evasion.
literature
- Marius Schick: Avoiding the law in the light of national and community law case law (Frankfurt 2008) .
- Martina Benecke: Avoiding the Law in Civil Law - Teaching and Practical Case in General and International Private Law (Tübingen 2004).
- Oliver Heeder: Fraus legis. A comparative law study on the prohibition of legal evasion in Germany, Austria, Switzerland, France and Belgium, with special consideration of international private law (Frankfurt a. M. 1998).
- Peter Rummel: Commentary on the General Civil Code §§ 1-1174 ABGB3 (Vienna 2000).
- Klaus Schurig: in Festschrift for Murad Ferid, The circumvention of the law in private law , 375 ff. (Munich 1978).
Individual evidence
- ↑ Heinrich Honsell: Römisches Recht , 7th edition, 2010, p. 12 ff.
- ^ Karl Larenz / Manfred Wolf: BGB general part , 8th edition, § 40 Rn. 6th
- ↑ Reinhard Bork: General Part of the BGB , 2006, p. 423
- ↑ Martina Benecke: Avoiding the Law in Civil Law - Doctrine and Practical Case in General and International Private Law (Tübingen 2004), p. 90.
- ↑ Michael Lamsa: The company of the foreign company , 2011, p. 63.
- ^ RG , judgment of June 1, 1937, in: RGZ 155, 146.
- ↑ BGHZ 110, 230, 233 f.
- ↑ Martina Benecke: Avoiding the Law in Civil Law - Doctrine and Practical Case in General and International Private Law (Tübingen 2004), p. 11.
- ↑ Benecke, Martina: Avoiding the Law in Civil Law - Doctrine and Practical Case in General and International Private Law (Tübingen 2004), p. 208.
- ↑ BAG , ZIP 2009, 2073, 2076.
- ↑ Dirk Looschelders: Internationales Privatrecht , 2004, p. 193.
- ↑ Michael Lamsa: The company of the foreign company , 2011, p. 63.
- ^ Justus Wilhelm Hedemann: Property Law of the BGB , 1950, p. 408.
- ^ RG, judgment of October 9, 1880, RGZ 2, 168; RGZ 13, 200, 204.
- ↑ RG 59, 146, 148.
- ↑ BGE 119 II 326, E.2a.
- ↑ Klaus Schurig: Avoiding the law in private law , 1978, p. 375 ff.
- ↑ Oliver Heeder: Fraus legis , 1998, p. 76 f.
- ↑ Martina Benecke: Avoiding the Law in Civil Law - Doctrine and Practical Case in General and International Private Law (Tübingen 2004), p. 32.
- ↑ Dieter Medicus: General part of the BGB , 2010, p. 269.
