Collusion (law)
Collusion ( Latin collusio , "secret consent") is the unauthorized interaction of several participants with the intention of harming a third party .
General
At least three people are involved in a collusion, at least two who work together collusively and at least one injured party. A typical case of collusion are the car smashers who work together with car workshops , which charge excessive repair costs for the mostly expensive cars .
Collusion in private law
In private law , according to the prevailing opinion , collusion can lead to the nullity of the legal transaction due to immorality in accordance with Section 138 (1) of the German Civil Code and, in accordance with Section 826 of the German Civil Code , justify a claim for damages due to intentional immoral damage . According to another opinion, analogous to the rules of the representative without power of representation ( Section 177 (1) BGB), the person represented has the choice of whether to approve the transaction.
A case of collusion occurs, for example, when a business partner concludes a contract with the authorized signatory of a company and both of them know that they will damage that company as a result. In this case, the business partner cannot claim that the scope of the power of attorney in the external relationship is determined by the law ( Section 49 HGB ) and can not be limited by work instructions from the internal relationship.
If no collusive interaction can be determined, there may be a case of abuse of the power of representation or of evidence . This is already the case if it is objectively obvious to the business opponent that the representative exceeds the limits of legal entitlement in the internal relationship within the framework of his legal ability in the external relationship. Subjectively, grossly negligent ignorance is sufficient for this. Then the third party is not worthy of protection in his trust in the power of representation , but he does not act in a collusive manner, so that immorality within the meaning of Section 138 (1) and Section 826 of the German Civil Code ( BGB) are not considered. Instead, the provisions of representation without power of representation (Section 177 (1) BGB) are applied analogously, if necessary with correction of the legal consequence of considerable contributory negligence ( Section 242 and Section 254 BGB).
The collusion and the evidence are exceptions to the principle that the person represented bears the risk of abuse of the power of representation, which is based on traffic safety aspects. Against this background, it quickly becomes clear that these institutes regulate the cases in which the counterpart, contrary to the normal case, is not worthy of protection.
Collusion in criminal law
Collusion if incited
The term is also used in criminal law when several people work together to commit a crime . After a partially represented in the criminal literature review must in inciting the instigator (see. § 26 of the Criminal Code ) with the instigated main perpetrators collude , a kind of injustice pact close. According to the prevailing opinion , however, all that is required is to evoke the decision to act (according to another view, by way of open spiritual contact).
Significance of the private law figure in criminal law
In addition, the above-mentioned private law restriction of the power of attorney through cases of collusion in the case of breach of trust ( Section 266 of the Criminal Code) in the form of an offense of abuse can play a role in criminal law because ( according to the overwhelming opinion in case law and literature ) an abuse affects the effectiveness in external relations presupposes, whereas it is unimportant in the case of infidelity in the form of a breach of faithfulness.
Individual evidence
- ↑ cf. the case of BGH NJW 1989, 3161 , where the perpetrator's brother owned a car repair shop
- ^ BGH, judgment of November 5, 2003, file number VIII ZR 218/01 , NZG 2004, p. 139 (140), beck-online.
- ↑ Jan Lieder : Abuse of representative power and collusion. In: JuS 2014, pp. 681-686 (685 f.).
- ^ Dominik Klimke in: BeckOK HGB, Häublein / Hoffmann-Theinert, 28th edition. Status: April 15, 2020, Section 126 Rn. 14th
- ^ BGH, judgment of January 31, 1991 , Az.VII ZR 291/88, full text = BGHZ 113, 315, 320.
- ↑ For example Ingeborguppe , Der objective Tatstrom der Anstiftung , in: GA 1984, p. 112
