A misdemeanor is in Germany a finable violation of administrative law (administrative wrong).
According to German law, an administrative offense is a violation of the law (precisely: an unlawful and accusable act ) for which the law provides for a fine as a punishment ( Section 1 (1) of the Administrative Offenses Act (OWiG)). In the case of some violations of the road traffic regulations , a driving ban for a maximum of three months can be imposed in addition to the fine (synonym: fine) .
In the case of minor legal violations, modern lawmakers consider it sufficient not to react with the means of punishment , but only with fines. This mainly applies to minor cases of endangering or impairment of the legal interests of other people (e.g. violations of the road traffic regulations), but also for cases of disobedience to administrative regulations (e.g. the violation of an obligation to report ).
Relationship to criminal law
In terms of the legal system, the law on administrative offenses is part of administrative law , even if its strong criminal law roots are clearly visible. The historical legal distinction between criminal law, police criminal law and disciplinary criminal law reveals the common basic idea of sanctioning legal misconduct, but blurs the fundamental legal systematic differences that have been more clearly worked out in modern jurisprudence . When we speak of criminal law (in the narrower sense) today, we only mean criminal criminal law, which is divided into the core criminal law contained in the Criminal Code and the criminal provisions of so-called ancillary criminal law, which are scattered in specialist laws . Modern disciplinary law is the professional code of conduct for civil servants . In contrast to historical disciplinary criminal law, a clear distinction is made between punishable disciplinary offenses and criminal offenses (e.g. §§ 331 ff. StGB ). The former so-called police criminal law is now understood as administrative law and can be found in the law of administrative offenses. Nonetheless, when creating the Administrative Offenses Act, the Federal Government, with the approval of the Federal Constitutional Court, invoked the competing legislative competence for criminal law ( Art. 74 (1) No. 1 GG ).
The regulatory offense law is also often referred to as the little brother of criminal law. The regulatory offense law is largely modeled on the criminal law, but also differs from it in key points. In particular, the fine is not a penalty ; because the administrative authorities appointed to prosecute and prosecute administrative offenses ( Section 35 OWiG) may not impose any penalties; the imposition of criminal sentences is counted at the core of the judicial activity, which is reserved for the judge ( Art. 92 GG). Furthermore, unlike in criminal law, there is no participation in regulatory offense law ( inciting or aiding and abetting ), rather all those involved are treated as “perpetrators” (so-called unit offenders ) in accordance with Section 14 (1) OWiG. Nonetheless, regulatory offense law is not completely separate from criminal law, as in individual cases reference is made to criminal law in regulatory offense law (§ 30 OWiG and § 130 OWiG). In contrast to criminal criminal law, administrative offense law is basically limited to domestic offenses. The spatial scope is based on §§ 5 and 7 OWiG. However, within the framework of Section 130 OWiG, sanctions are not ruled out if the infringement required therein was committed abroad, provided that the breach of supervisory duty itself is to be classified as a domestic offense.
The legal consequences of a traffic offense also differ significantly from the legal consequences of a traffic offense. A penalty is imposed on anyone who commits a traffic offense. In contrast to criminal offenses , the administrative offenses lack ethical worthlessness, i.e. moral reproach, although there is misconduct, which the legislature at least punishes with a fine or a driving ban in order to show the person concerned his misconduct.
If the fine cannot be recovered, it is generally possible to order coercive detention. For a single fine, a maximum of six weeks of coercive detention is permissible, for several fines combined in one notice, a maximum of three months. The coercive detention is a means of overcoming the lack of willingness to pay. In this respect, it is similar to the substitute compulsory detention in administrative enforcement law, which replaces the penalty payment as a means of preventing it from being recovered, and differs significantly from the substitute imprisonment in criminal law ( Section 43 StGB); it does not reduce the amount of the fine to be paid. Compulsory detention may not be ordered against those affected who are not only temporarily insolvent and who are also no longer creditworthy.
The principle of opportunity applies to administrative offenses . This means that the prosecution is at the dutiful discretion of the administrative authority. In the case of minor administrative offenses, a warning can only be issued and a fine of up to € 55 can be levied. If a warning is out of the question because of the seriousness of the traffic offense, but a fine is imposed, a driving ban for between one and three months can also be ordered. However, this only occurs if the obligations of a motor vehicle driver have been violated or persistently violated or if there is an alcohol or drug trip. A nationwide catalog of fines has been drawn up for traffic offenses to ensure the most uniform possible punishment . The catalog of fines is not based on the economic circumstances of the person concerned and is therefore only an orientation aid for the courts. They always have to assess the specific individual case.
Application of law
If an act is both a criminal offense and an administrative offense, the criminal law takes precedence ( Section 21 OWiG). If the court has finally decided on the offense as a criminal offense, the same offense can no longer be prosecuted as an administrative offense ( Section 84 (1) OWiG). The final court verdict on the fact as a misdemeanor (.. Not the penalty notice; s a § 86 Administrative Offenses Act) is their persecution as a crime against ( criminal proceedings ; § 84 para 2 Administrative Offenses Act.), But here comes possibly a resumption to the detriment of the person concerned into account ( § 85 Paragraph 3 OWiG in conjunction with Section 362 StPO ).
Germany is one of the few countries in the world whose criminal law does not provide for the criminalization of legal persons . Legal persons as such are incapable of acting and guilty. They can only act through their organs. In particular in cases of white- collar crime , only the natural persons acting on behalf of the company (management board, supervisory board, employees, etc.) can be prosecuted. Insofar as this violates company-related obligations that affect the company itself, or the company itself is a beneficiary of the criminal offenses, sanctions in Germany can currently only take place via the regulatory offense law in the form of the so-called association fine ( Section 30 OWiG); The maximum amount of the association fine is 10 million euros for deliberate criminal offenses by senior company representatives ( Section 30 (2) sentence 1 no. 1 OWiG), and 5 million euros for negligent offenses ( Section 30 (2) sentence 1 no. 2 OWiG). For the assessment of the breach of duty, it is not necessarily only the duties of the individual legal person that are important; depending on the circumstances of the individual case, group-wide obligations may also be considered. The introduction of an independent corporate criminal liability has long been discussed in law and politics.
Relationship to administrative enforcement
Legislation for administrative enforcement : According to a resolution of the Legal Committee of the Federal Council, the means of the administrative offense law should only be used as a sanction in the case of legal obligations whose failure to comply in time or in full would result in significant disadvantages for important community interests . Only in these cases should rules on fines be created. Otherwise, enforcement by means of administrative coercion is sufficient.
Application of the law: Administrative coercion can be applied in addition to a fine (cf. § 13 Paragraph 6 of the Administrative Enforcement Act ).
Structure of the legal regulation
The law on administrative offenses (OWiG) only partly shows which actions are illegal . The vast majority of administrative offenses are regulated in special laws for certain areas of life (the so-called subsidiary criminal law ).
By far the most important group of administrative offenses results from the road traffic regulations (StVO) . However, numerous other laws also provide for violations to be punished as an administrative offense. So is z. B. for certain goods the import without a surveillance document ( § 32 in conjunction with § 81 para. 2 Foreign Trade Ordinance) an administrative offense according to § 19 Foreign Trade Act . In practice, the numerous fines contained in the State Treaty on Youth Media Protection and in the State Treaty on Broadcasting are becoming increasingly important .
The OWiG provides the basic features of the regulatory offense law, i.e. the regulations that apply to all regulatory offenses. In addition to procedural regulations, these are primarily regulations
- about the analogous application of the law ( prohibition of analogy as in criminal law, " nulla poena sine lege "),
- on the temporal and spatial scope of the German administrative offense law,
- the penalties of a wrongful omission (real (eg § 130 OWiG) and reverse (§ 8 OWiG) omission offenses),
- about the subjective facts ( intent and negligence ),
- about the error (avoidable or unavoidable prohibition error , deliberate error excluding factual error ),
- about the punishment of the attempt ,
- on participation (in contrast to criminal law, no distinction is made between inciting and aiding and abetting ), Section 14 OWiG,
- about possible justifications such as B. Self-defense ,
- via the competition , i.e. via the treatment of several chronologically related offenses ( unity and majority of offenses ).
The procedure - from the first suspicion through the judicial or administrative decision to enforcement - is regulated in the OWiG. Some of the regulations differ significantly from the law of criminal procedure , in particular from the code of criminal procedure:
The principle of legality applies to the prosecution of criminal offenses (criminal offenses must be prosecuted); In regulatory offense law, on the other hand, the principle of opportunity applies : prosecution is at the discretion of the authority. The reason can be an administrative offense report, which anyone can report to the competent authority or the police.
In the case of minor regulatory offenses, the person concerned, as the delinquent is consistently called in regulatory offense law, can be warned; A warning fine can be levied (minor offenses are minor, for which the fine would amount to € 55). A warning fee offered by the authority only becomes effective if it is accepted , namely by payment within the period of one week specified for this ( Section 56 (2) OWiG).
The public prosecutor's office is only responsible if an administrative offense coincides with a criminal offense ( Section 40 OWiG). Otherwise, it is not the public prosecutor's office that is responsible for prosecuting administrative offenses, but rather the “administrative authority” ( Section 35 OWiG), also referred to in some places in the law as the “prosecuting authority”. Which authority this is in concrete terms results either from a special legal regulation or from § 36 OWiG. Usually it is the regulatory authority responsible for the subject area concerned . If the competent authority cannot act (for example on weekends) or if there is no special authority (for example for road traffic), the police are responsible. The competence of the administrative authority ends and the proceedings are continued by the public prosecutor's office if the person concerned objects to the administrative fine ( see below ), i.e. if a decision has to be taken on the initiation of legal proceedings.
Unless the OWiG contains any special regulation, the provisions of the Code of Criminal Procedure (StPO) apply accordingly (so-called transformation regulation , § 46 OWiG); The prosecuting authority has largely the same rights and obligations as the public prosecutor's office in the prosecution of criminal offenses. In the penalty proceedings are therefore searches or seizures possible. However, arrests , arrests and forced admissions are excluded .
The police also have the same rights and obligations when prosecuting administrative offenses as they do when prosecuting criminal offenses, unless the OWiG contains any special rule ( Section 53 OWiG). However, far-reaching encroachments on fundamental rights can only be ordered by police officers who are the investigators of the public prosecutor's office ( Section 53 (2) OWiG).
A person against whom a fine is being pursued is called the “person concerned”.
If the proceedings are not discontinued, and if there is no (effective) warning (e.g. because the warning money was not paid on time), the administrative authority issues a fine . In contrast to a warning, a notice of fines is associated with additional costs (fee and expenses). Any parties involved (e.g. the injured party) have a right to inspect the files only after the notification of the fine has been delivered .
As soon as the fine notice is legally binding , it can be enforced . Unlike fines in criminal law, however, fines cannot be converted into prison sentences . In order to collect the fine, the competent court can order enforcement detention in accordance with Section 96 of the OWiG .
Legal force occurs automatically if the period for appeal expires without an effective legal remedy being raised. The legal remedy against a fine is called objection . The objection period is two weeks ( Section 67 (1) OWiG), i. H. the objection is only effective if it is submitted within two weeks of the notification of the fine.
Procedure after an objection
In response to the objection, the administrative authority can withdraw the fine. Otherwise, it forwards the matter to the public prosecutor's office , which submits it to the local court for decision. The court sets a date for the hearing in which the facts are clarified by taking evidence and legally assessed. Unlike in criminal proceedings, the public prosecutor does not have to take part in the hearing. The defendant is also to be released from being present at the main hearing upon application if he has already testified on the matter or has declared that he does not want to testify on the matter and his presence is not required to clarify the facts ( Section 73 (2) OWiG).
If the person concerned does not appear at the court hearing without sufficient excuse and was not released from the obligation to be present at the main hearing, his objection will be rejected ( Section 74 (2) OWiG).
Under certain conditions, the local court can against the decision on the appeal , the Court of Appeal as the next instance to call. If the Higher Regional Court considers this to be necessary in order to preserve the uniformity of case law, the Federal Court of Justice can even be appealed.
Repeated administrative offenses
Some sanction norms in German criminal law qualify the persistent or repeated commission of an administrative offense as a criminal offense. Examples for this are:
- Persistent violations in the travel trade ( offenses in accordance with Section 144 Paragraph 1, Section 145 Paragraph 1, Paragraph 2 No. 2 or 6 or Section 146 Paragraph 1, Section 148 Trade Regulations ),
- Persistent violations of the spatial restrictions on the residence of asylum seekers (offenses pursuant to Section 56 Paragraph 1 or 2, in each case also in conjunction with Section 71a Paragraph 3, Section 85 No. 2 Asylum Act ),
- persistently repeated application of films or game programs that are detrimental to young people, with reference to the content detrimental to young people ( Section 27 (2) No. 2 of the Youth Protection Act),
- Persistent practice of prohibited prostitution (offense according to § 184f StGB , in contrast to the prohibited practice of prostitution as an administrative offense according to § 120 OWiG).
Furthermore, the principle that a repeat case is more strictly sanctioned also applies to administrative offenses. For example, the catalog of fines , which contains guidelines for punishing traffic violations, expressly differentiates between first-time and repeat offenders.
Compared to other countries
In Austria there is an administrative criminal law analogous to the German administrative offense law , which is regulated by the Administrative Criminal Law 1991 (VStG; general administrative criminal law, procedural law), the General Administrative Procedure Law 1991 (AVG; procedural law; see Section 24 (2) VStG) and numerous criminal offenses in various individual laws .
In Switzerland this applies Federal Law on Administrative Criminal Law (ACLA) of 22 March 1974. A misdemeanor is then an offense that expressly referred or by individual administrative law as a misdemeanor with Ordnungsbu ss is threatened e (Art. 3 ACLA). In the case of an administrative offense, inciting and assisting are not punishable (Art. 5) and coercive measures are not permitted (Art. 45).
The term “administrative offense” is not used in military criminal law. In terms of content, however, it largely corresponds to that of the so-called light case, which entails a disciplinary penalty.
Despite all the differences, the following terms roughly correspond to one another:
|OWiG||VStG||StGB / StPO / VStrG|
|Fine proceedings||Administrative criminal proceedings||
Infringement of criminal proceedings /
administrative penal proceedings
|Administrative offense||Administrative offense||Transgression|
|Affected||Accused||accused person / accused|
|Penalty notice||Notification with criminal judgment
or administrative penalty notification
|Infringement penalty order / penalty notice|
|Objection||Complaint to the VG||Objection|
|Warning procedure||Abbreviated procedure||Administrative fine procedure (according to OBG)|
Penal order / anonymous order / organ penalty order
||(Collection / receipt)|
|Warning fee (up to € 55)||Fine (up to € 600/365/90)||Fine (up to CHF 300)|
|refusal||Objection / non-payment||Rejection|
|Catalog of fines / warnings||Catalog of facts||List of fines|
- Administrative law , administrative penalty , transgressions , decriminalization , Bußgeldkatalog , traffic ticket
- Commentary on the OWiG .
- Torsten Noak, Introduction to misdemeanor cases - Part 1: Ahndungsvoraussetzungen , Journal of the Legal Studies (ZJS) 02/2012, 175 ( PDF ).
- Torsten Noak, Introduction to Administrative Offenses Law - Part 2: Legal Consequences, Journal for Legal Studies (ZJS) 03/2012, 329 ( PDF ).
- Torsten Noak, Introduction to Administrative Offenses Law - Part 3: Administrative Fine Procedure , Journal for Legal Studies (ZJS) 04/2012, 591 ( PDF ).
- Christian Caracas, Responsibility in international corporate structures according to Section 130 OWiG - Using the example of bribery in business transactions with no punishments abroad, Nomos-Verlag, Baden-Baden 2014, ISBN 978-3-8487-0992-2 .
- Text of the Law on Administrative Offenses (Germany)
- Information from the central fines office in Bavaria
- ↑ BVerfGE 27, 18 .
- ↑ Christian Caracas: Section 130 OWiG - The Long Sword of Fighting Corruption - Part 1 and Part 2 in Corporate Compliance Journal (CCZ) 2015, pp. 167 ff. And 218 ff.
- ^ Public Prosecutor Munich I, administrative offense proceedings against Siemens Aktiengesellschaft, (draft). (PDF) Retrieved March 4, 2015 . ; Administrative penalty notice in accordance with Section 30 , Section 130 Paragraph 1, Section 42 OWiG
- ↑ OLG Munich, decision v. September 23, 2014 - 3 Ws 599/14, 3 Ws 600/14 with a note from Caracas in Corporate Compliance Zeitschrift, 2016, p. 44 ff.
- ↑ Principles on the necessity of sanctions under the law of fines, in particular in relation to measures of administrative coercion of March 2, 1983 = Manual of Legal Formality, Appendix 2.
- ↑ For more information, see Roland Bornemann, Administrative Offenses in Broadcasting and Telemedia, 5th edition, Bremen 2015.