Prostitution contract
A prostitution contract is a service contract for the performance of a sexual act .
Germany
General
During the 20th century, the prostitution contract in Germany was generally regarded as immoral ( Section 138 (1) BGB ) and thus void . The consequence of this was that the prostitute had no claim against the customer (“client”) for payment even after the act had been performed. In order to ensure remuneration, an advance payment was therefore usually agreed; In this case, according to § 817 sentence 2 BGB, a reclaim was excluded.
On January 1, 2002, the Prostitution Act (ProstG) came into force, with which the legal and social situation of prostitutes should be improved. The law established the legal validity of the payment claim. However, it is controversial whether prostitution contracts are still immoral.
Relationship between clients and prostitutes
The service contract between the customer and the prostitute is a unilaterally binding contractual relationship. The customer has no claim to the service. Once the service has been performed, the prostitute is entitled to the previously agreed remuneration. An objection to the payment claim is only possible if the service has not been provided, but not in the case of poor performance .
Relationship between brothel operator and prostitute
The permanent obligation between the brothel operator and the prostitute is an effective employment or service contract in accordance with Section 1 Clause 2 Prostitution Act . The object of the contract is to keep prostitutes ready to perform sexual acts. According to the prevailing opinion, this contract is only binding on one side. Pursuant to Section 2 Sentence 2 of the Prostitution Act, there are only opportunities to object to the claim for payment if the prostitute has not been available for the agreed period of time. No objection is possible if the prostitute has refused to perform sexual acts on a client. The brothel operator has no right of instruction when it comes to selecting customers and offering sexual practices . On the other hand, he has the right to issue instructions with regard to the place and period of time to be available.
Shares from escort services and agencies can amount to up to 60% of the salary. Agencies usually do not put pressure on their prostitutes because they can “rely on the competition among the girls”. The competition can lead to prostitutes offering sexual practices that they have rejected and thus also becoming more lucrative for the agencies.
Compulsory social security
The Prostitution Act provides for the possibility of employed and then social insurance-paying activities of prostitutes, and thus the obligation for brothel operators and corresponding agencies to pay the employer's share of social security contributions. In fact, this is canceled out by the fact that only around 1% of prostitutes are employed accordingly. It is quite common that in contracts of the red light district it is expressly regulated that although this is no employment in the sense of labor law, although an exclusive activity is agreed only for one company, the social security obligations and taxation are therefore not incumbent on the company. These attempts to circumvent the prostitution or attempts to pass the corresponding obligations on to prostitutes in the context of pseudo self-employment are considered to be a major problem in the intended improvement of the prostitutes' social and legal position.
Austria
In Austria , prostitution contracts are generally considered immoral and therefore void in accordance with Section 879 of the Austrian Civil Code . By judgment of the Supreme Court (OGH) of April 18, 2012 (Az. 3 Ob 45 / 12g), they are not fundamentally immoral; for example, the sexual act performed as agreed against previously agreed remuneration constitutes an actionable claim for remuneration. Numerous other framework conditions are similar to those in Germany.
Switzerland
According to prevailing doctrine and the highest court rulings, prostitution is immoral and the fulfillment of the contract is therefore not enforceable, which is why prepayment is customary. In 2012, the canton of Bern, with a professional status initiative, called on the federal parliament to change the relevant legal provision so that prostitution is expressly excluded from immorality. A judge in Horgen ruled in 2013 that prostitution in the greater Zurich area is no longer immoral and that at least the monetary claim must be met.
literature
- Christian Armbrüster: Appendix to Section 138 (Sections 1-3 ProstG). In: Munich Commentary on the Civil Code. 5th edition 2006.
- Holger Wendtland: Prostitution Act. In: Heinz Georg Bamberger, Herbert Roth: Beck'scher online commentary on the BGB.
- Andrea Di Nicola, Isabella Orfano, Andrea Cauduro, Nicoletta Conci: Study on national legislations on prostitution and the trafficking in women and children. Transcrime / European Parliament , 2005, ec.europa.eu (PDF)
- Götz Schulze: The natural bond. Mohr Siebeck Verlag, Tübingen 2008, ISBN 978-3-16-149407-9 , pp. 548-551.
Individual evidence
- ↑ Martin Auer : Whore taxi - report from the Viennese red light district - end . ( Memento of the original from November 4, 2006 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. In: Readers Edition , September 24, 2006. Auer gives the example price of 140 euros for one hour, of which the prostitute receives 60 euros.
- ↑ Martin Auer: Whore taxi - report from the Viennese red light district - end . ( Memento of the original from November 4, 2006 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. In: Readers Edition , September 24, 2006.
- ↑ Martin Auer: Whore taxi - report from the Viennese red light district - end . ( Memento of the original from November 4, 2006 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. In: Readers Edition , September 24, 2006. “The economic east-west divide and the laws of the market mean that girls have become younger, prettier and more willing. New girls are constantly pushing in, and mostly 'voluntarily'. Voluntary in the sense that they are not directly forced to do so by others, but 'only' by the 'circumstances'. "
- ↑ Joachim Renzikowski: Regimentation of prostitution - a critical consideration of the prostitution law . (PDF; 923 kB) Expert opinion on behalf of the Federal Ministry for Family Affairs, 2007. Cf. Katharina Schuler: Luftnummer . In: Die Zeit , No. 4/2006.
- ↑ Martin Auer: Hurentaxi - Report from the Viennese red light district - Part 1 ( Memento of the original from January 26, 2007 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. . In: Readers Edition , September 19, 2006.
- ↑ Joachim Renzikowski: Regimentation of prostitution - a critical consideration of the prostitution law . (PDF; 923 kB) Expert opinion on behalf of the Federal Ministry for Family Affairs, 2007. No. 88, 89.
- ↑ Communication from the Supreme Court of 23 May 2012. ( Page no longer available , search in web archives ) Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. Retrieved June 4, 2012.
- ↑ OGH April 18, 2012, 3 Ob 45 / 12g. Retrieved June 4, 2012.
- ↑ Professional initiative of September 12, 2012
- ↑ Groundbreaking verdict: prostitution is not immoral . In: NZZ
