Prostitution Act

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Basic data
Title: Law regulating the legal relationships of prostitutes
Short title: Prostitution Act
Abbreviation: ProstG
Type: Federal law
Scope: Federal Republic of Germany
Legal matter: Civil Law
References : 402-39
Issued on: December 20, 2001
( BGBl. I p. 3983 )
Entry into force on: January 1, 2002
Last change by: Art. 2 G of October 21, 2016
( Federal Law Gazette I p. 2372, 2385 )
Effective date of the
last change: 		July 1, 2017
(Art. 7 G of October 21, 2016)
GESTA : I012
Please note the note on the applicable legal version.

The Prostitution Act ( law regulating the legal relationships of prostitutes - ProstG) is a federal law in Germany consisting of three paragraphs that regulates the legal status of prostitution as a service in order to improve the legal and social situation of prostitutes. The law was promulgated on December 20, 2001 and has been in force since January 1, 2002 (Federal Law Gazette I 2001, p. 3983; FNA 402–39). At the same time, the Criminal Code (StGB) was changed in § 180a ( exploitation of prostitutes ) and § 181a ( pimping ) to the effect that creating an appropriate work environment is no longer punishable as long as prostitutes are not exploited.

Since the law came into force , it should be possible to justify actionable claims for payment through agreements on sexual acts as the subject of a prostitution contract . This is not only important for civil law , but also has implications for criminal law ( property offenses ). In addition, prostitutes can now take out regular health , unemployment and pension insurance.

Origin and content

Legal development

Before the Prostitution Act came into force, contracts for sexual services were generally considered to be immoral within the meaning of Section 138 (1) BGB . The legal consequence of the immorality is the nullity of the contract. Therefore, neither the customer was entitled to the provision of the service nor the prostitute to the agreed consideration. The consequence was the practice of prepayment; In this case, according to § 817 sentence 2 BGB, a reclaim of the fee was excluded.

In the opinion of the Berlin Administrative Court, prostitution was no longer immoral even before the Prostitution Act: “[...] the state obligation to protect human dignity ( Art. 1, Paragraph 1, Sentence 2 of the Basic Law) must not be misused to affect the individual by interfering with to protect individual self-determination from oneself, as it were. ”The European Court of Justice has made it clear that prostitution is one of the gainful activities that are“ part of community economic life ”within the meaning of Article 2 EC . Decisions that cast doubt on the immorality were not made in civil law, as the follow-up question of whether the service can be enforced, compensation for poor performance , etc. immediately arises here.

This civil law assessment also had an impact on the criminal law definition of assets and thus in particular on fraud , which requires financial loss. If the work performed by the prostitute could not justify a claim, it was not part of the criminally protected property. Anyone who made use of sexual services and thereby deceived their willingness to pay did not commit fraud for lack of financial loss. The Federal Court of Justice had confirmed this consequence in the prostitute's wage case . On the other hand, the prostitute who accepted money and thereby deceived the customer about her willingness to provide sexual services was very likely to commit fraud, since the majority of the viewers believed that the customer's “good money” was part of the customer's protected assets, despite the immoral purpose.

This legal situation was assessed by the legislature as in need of reform.

The legislative process started in May 2001 and involved several expert hearings. In addition to the parliamentary groups of the governing parties SPD and Bündnis 90 / Die Grünen, the opposition parliamentary groups of the FDP and the PDS also voted in the Bundestag on October 19, 2001 for the bill introduced by the government. Only the CDU / CSU parliamentary group rejected the law.

Regulatory content

“If sexual acts have been carried out for a previously agreed fee , this agreement constitutes a legally effective claim . The same applies if a person, especially in the context of an employment relationship , is available for the performance of such actions for a previously agreed fee for a certain period of time. "

- § 1 ProstG

In § 1 it is arranged that after the sexual services have been performed ("performed ") there is a right to payment of the promised consideration. This makes it clear that the customer does not have a claim to the provision of the service or that this would even be enforceable. In view of the fact that even judgments on the establishment of the conjugal union are not enforceable, § 120 Abs. 3 FamFG , this would be a hardly explainable contradiction and most likely also unconstitutional because of a violation of Art. 1 GG (respect for human dignity ).

“The claim cannot be assigned and can only be asserted in your own name. A claim according to § 1 sentence 1 can only be objected to in full, against a claim according to § 1 sentence 2 also partial non-fulfillment , insofar as it relates to the agreed period of time. With the exception of the objection to fulfillment in accordance with Section 362 of the German Civil Code and the objection of the statute of limitations , further objections and defenses are excluded. "

- Section 2 Prostitution Act

Section 2 of the law ensures that the objection of immorality due to the type of service provided is just as impossible as that of poor performance: evidence of the quality of the services provided should not have to be taken in court. Contrary to the text of the law, however, other objections such as legal incapacity and probably also immorality due to usury are not excluded.

In addition, it should not be possible to assign the payment claim. Beyond the wording, the claim should also not be able to be asserted by way of collection authorization or litigation status , while representation (acting in a foreign name) remains possible. This makes trading in such claims impossible.

"In the case of prostitutes, the restricted right to issue instructions in the context of a dependent activity does not preclude acceptance of employment within the meaning of social security law."

- § 3 Prostitution Act

Section 3 creates the prerequisites for admission to social insurance.

The enforceability of fees is of little importance in practice, since prepayment is practically always used.

The ban on advertising for the performance of sexual services ( Section 119 OWiG ) was not lifted by the Prostitution Act. The administrative offense ( § 120 OWiG) and the criminal offense ( § 184d StGB ) of prohibited prostitution, i.e. the violation of a restricted area ordinance issued on the basis of Art. 297 EGStGB , have also remained unchanged .

perception

criticism

It is argued that the formulation that “further objections and defenses are excluded” has gone too far and requires a teleological reduction . Because also the legal incapacity , especially the minority of the customer, is a (legal obstructive) objection , which would be excluded according to the wording. It could not be intended by the legislature, for example, that minors, who cannot even conclude effective contracts for the acquisition of everyday objects, can now justify effective remuneration claims for sexual services against themselves.

Since human dignity as the highest constitutional value ( Art. 1 GG ) is not at the discretion of the state, not even by law , some lawyers believe that prostitution continues to be immoral. This is particularly supported by the fact that § 2 ProstG only excludes the objection of immorality and § 1 only speaks of a "legally effective claim", but does not positively stipulate that the contract is not immoral or even effective. The lack of enforceability of the sexual performance clearly shows that it is still not an ordinary contract. All of this can, however, remain insofar as the legal relationships are finally regulated by the Prostitution Act. Services rendered now also belong to the protected assets for criminal law; the “dirnenlohn” jurisprudence is outdated.

Section 180a of the Criminal Code does sanction the “exploitation of prostitutes”. The paragraph is seldom applied, however, because both economic dependence and personal dependence are difficult to prove and it is debatable when there is dependence. A conviction in criminal proceedings is, however, rather unlikely without a statement from the person concerned.

The magazine Emma criticizes the fact that the Prostitution Act primarily promotes forced prostitution . Emma's criticism is not directed specifically against the Prostitution Act, but against prostitution as such.

In its judgment of May 6, 2009, the Federal Social Court ruled that the Prostitution Act was enacted to protect employees and not to promote business. A brothel operator can therefore not ask the Federal Employment Agency to place prostitutes.

Amendment

In the coalition agreement negotiated by the CDU, CSU and SPD after the 2013 federal election , a “comprehensive revision” of the Prostitution Act was announced. In this context, the legal basis for inspections of prostitution sites by the regulatory authorities should be improved. In the same section of the coalition agreement, albeit without a direct legal connection to the Prostitution Act, the governing parties also announced measures against forced prostitution and human trafficking . In this way, the victims should be better protected and corresponding offenders punished more consistently. In future, action should also be taken against people “who knowingly and willingly exploit the plight of the victims of human trafficking and forced prostitution and who abuse them for sexual acts”.

In September 2016, the Prostitute Protection Act was passed, which introduced an obligation to register for prostitutes, a permit requirement for the prostitution business and other regulations, such as regular, mandatory health advice and a condom requirement.

See also

literature

  • Margarete Countess von Galen : Legal issues of prostitution. The Prostitution Act and its effects. Beck, Munich 2004, ISBN 3-406-51005-1 (also: Bern, University, dissertation, 2004).
  • Christian F. Majer : The prostitution contract and good morals . In: Law Studies & Exams . Issue 3, 2012, p. 5–22 ( zeitschrift-jse.de [PDF; 3.5 MB ]).
  • Christian Friedrich Majer: Immorality and the Prostitution Act in Marketing and Brokerage. In: New legal weekly . Vol. 61, No. 27, 2008, pp. 1926-1929.
  • Kerstin Trede: Effects of the law regulating the legal relationships of prostitutes (ProstG) on criminal and administrative offense law. Kovač, Hamburg 2007, ISBN 978-3-8300-2618-1 (also: Heidelberg, University, dissertation, 2006).

Web links

Individual evidence

  1. ^ VG Berlin, judgment of December 1, 2000, VG 35 A 570.99
  2. ↑ ECJ v. November 20, 2001 - Case C-268/99
  3. ↑ Women's research institute of the contact point for practice-oriented research at the Protestant University of Applied Sciences: Study "Effects of the Prostitution Act". ( Memento of the original from October 30, 2014 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. S. 3. Berlin and Freiburg 2005. Retrieved from the website of the Federal Ministry for Family, Seniors, Women and Youth. @1@ 2Template: Webachiv / IABot / www.bmfsfj.de
  4. ↑ See Palandt-Heinrichs § 138 BGB Rn. 52
  5. ^ Appeal against prostitution - main topic on Emma's website , accessed on December 29, 2013.
  6. ↑ focus.de: Employment agency doesn't have to look for prostitutes
  7. ^ The wording of the coalition agreement: 4.1 Social cohesion - strengthening together. In: Focus Online of November 27, 2013, accessed December 29, 2013.
  8. ^ Eva Högl: New regulation of prostitution in Germany: Not prohibited. In: The European of December 18, 2013.