Legitimation check

from Wikipedia, the free encyclopedia

In general, legitimation checking in legal matters is the determination of the identity of persons or the checking of the authenticity of signatures on documents or other documents using suitable identification papers and specifically the procedure required by credit institutions to identify customers when opening accounts , custody accounts or safe deposit boxes and for Checking the identity of over the counter shops .

Legitimation papers

As a rule, only an identity card or passport are considered suitable for verification of legitimation . Other papers such as registration certificate, driver's license or company ID are usually not accepted. Identity cards or passports include all personal details necessary for the legitimation as name , first name , birthday , birthplace , nationality and home address . The document must still be valid at the time of the legitimation check. In addition, persons subject to the Money Laundering Act (GwG) must also record the issuing authority, the type of document presented (e.g. identity card, passport, etc.) and the ID number ( Section 8 (2) sentence 1 of the GwG). Official identification presented to verify identity must be completely copied or digitally recorded by the obliged entity (Section 8 (2) sentence 2 of the GwG).

Reason for the legitimation check

A legitimation check has to be carried out by large circles of business , administration and the police / court ( "Determination of personal details " ; Section 163b StPO ), but the term is usually narrowed down to credit institutions. In general, under civil law, legitimation checks are required wherever the agreement between a signature and the original signature on the legitimation papers must be determined by comparison. If both signatures match, the authenticity of the signature is spoken of, which makes the signed contracts, documents or documents legally effective. With his signature, the undersigned expresses the unconditional will to take full responsibility for the content of the pleading. According to Section 416 of the German Code of Civil Procedure (ZPO) , a private document signed by the issuer himself provides full evidence that the declaration contained therein was made by the issuer. In the case of private documents, the authenticity of the signature is particularly important; the above text is subject to the (rebuttable) legal presumption that it is also genuine ( Section 440 (2) ZPO). However, good faith in the authenticity of a signature does not enjoy any legal protection. If a legitimacy check has not been carried out and any signatures are found to be invalid in the course of the legal dispute, the corresponding contracts are void . For this reason, it is advisable for each contractual partner to carry out a full legitimation check on contracts.

Except in the case of credit institutions, a legitimation check can only be dispensed with if the contractual partner was present when the other contractual partner signed and thus observed the authenticity of the signature. A legitimation check outside of credit institutions can also be omitted in those cases where signatures are repeated and an initial check has taken place. With the handwritten signature, the undersigned confirms that he regards the content of a document as legally binding.

Also notaries carry out an identity check on credentials and certifications. A notarial certification is the certificate that the signature or the hand sign of the exhibitor in the presence of a notary has been executed or recognized by the declaring party at the specified time ( §§ 39 and 40 BeurkG ). It also confirms that the person named in the certification note and the person making the declaration are identical. However, the authentication only relates to the authenticity of the signature and any authorization to represent. In a hearing in front of the notary, the parties involved declare their will ( § 8 BeurkG), which is recorded in writing, read out, approved and signed by the parties and the notary personally ( §§ 9 and 13 BeurkG). Notaries check the authorization to represent on notarial deeds according to § 21 BNotO through notarial inspection of a register in the form of a certificate of authorization to represent. According to Section 32 Paragraph 1 Clause 1 GBO , authorization of representation entered in the commercial, cooperative, partnership or association register as well as the existence of legal persons and companies can be proven by a certificate in accordance with Section 21 Paragraph 1 BNotO.

Identification check at credit institutions

Special rules apply to banks in Germany:

Opening and management of accounts, custody accounts and lockers

Credit institutions maintaining accounts must obtain certainty about the person and address of the person authorized to dispose of them and record the relevant information in a suitable form for accounts on the account ( obligation to ensure that the account is truthful ). In terms of tax law, this is referred to as an identity check ( Section 154 AO ). During the legitimation check, not only the identity of the account or securities account holder must be determined, but also the identity of any authorized representatives . If the customers are not present, as is the case with internet banks , an impersonal legitimation check must be carried out. The most common method for this is the Postident procedure . Swiss Post checks the identification papers and then forwards the confirmation of identification to the respective bank. Legal persons must identify themselves using current extracts from the commercial register , the register of associations , the register of cooperatives or the register of partnerships . The extract contains the full name of the legal entity, the registered office and the names of all authorized representatives. Another option in Germany is the new electronic identity card . A card reader connected to the computer is required for this . An AusweisApp reads the required data from the ID card after entering the PIN and transfers it to the bank in encrypted form.

Identification in money laundering related transactions

The legitimation check serves to implement the “ know your customer ” principle to prevent money laundering . For this purpose, according to Section 10 (1) of the GwG , credit institutions are forced to collect personal information and to verify identity . In Section 2 of the GwG, however, the group of identity-checking institutions is expanded far beyond the banking sector. According to this, the identification process extends to name, place of birth, date of birth, nationality and address ( Section 11 (4) of the GwG). This information must show a valid government-issued ID containing a photograph of the holder and the passport and identity card required is met domestically, to be verified in particular on the basis of a domestic or foreigners law recognized or approved passport, identity card or passport or substitute identity document ( Section 12 (1) of the GwG). In the case of legal entities or partnerships, an extract from the commercial or cooperative register or a comparable official register or directory must be requested ( Section 12 (2) of the GwG).

Insurance

Insurance companies are also obliged to verify their identity with their applicants / policyholders if the current premium per year exceeds EUR 1,000 or the single premium or payment into the premium deposit exceeds EUR 2,500. Owners of dynamic contracts are generally to be identified.

Legal situation in Austria

The regulations for legitimacy checks for bank customers are described in the Financial Market Money Laundering Act (FM-GwG). According to § 5 FM-GwG, the due diligence requirements set out in § 6 FM-GwG apply to customers under the following circumstances:

1. when establishing a business relationship; Savings deposit transactions in accordance with Section 31 (1) BWG and transactions in accordance with Section 12 Depot Act are always considered to be business relationships;

2. when performing all transactions that are not part of a business relationship (occasional transactions),

a) the amount of which is at least 15,000 euros or the equivalent of euros, regardless of whether the transaction is carried out in a single process or in several processes between which there is an obvious connection, or
b) which are money transfers within the meaning of Art. 3 Z 9 of Regulation (EU) 2015/847 of more than EUR 1,000; is the amount in the cases of lit. a not known before the start of the transaction, the duties of care must then be applied as soon as the amount is known and it is established that it is at least 15,000 euros or the equivalent of euros;

3. for every deposit made on savings deposits and every time a savings deposit is paid out, if the amount to be paid in or paid out is at least 15,000 euros or the equivalent of euros;

4. if there is a suspicion or justified reason to believe that the customer belongs to a terrorist organization (§ 278b StGB) or that the customer is objectively involved in transactions that involve money laundering (§ 165 StGB - including assets that result from originate from a criminal act by the perpetrator himself) or serve to finance terrorism (Section 278d StGB);

5. if there are doubts about the authenticity or appropriateness of previously received customer identification data.

The duties of care also include the duty to record the identity of a customer ( Section 6 (1) no.1 FM-GwG). This legitimation check is carried out - in accordance with German regulations - by personally presenting an official photo ID, which also includes a valid driver's license ( Section 6 (2) 1 FM-GwG). In the case of legal persons or minors, in addition to their own identity, the authority to represent and the identity of the person represented (in the case of legal persons, usually by submitting the extract from the commercial register) must be proven ( Section 6 (1) 2 of the FM-GwG).

See also

Web links

Individual evidence

  1. ↑ u. a. BGH judgment of May 10, 2005 , Az .: XI ZR 128/04, full text; NJW 2005, 2086, 2087 for process documents.
  2. ↑ BMI: The new ID card> Citizens> Applications> Finances
  3. ↑ Federal Act to Prevent Money Laundering and Terrorist Financing in the Financial Market (Financial Market Money Laundering Act - FM-GwG) , StF: Federal Law Gazette I No. 118/2016 , as amended