Conflict of duties

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A conflict of duties exists under German law if someone is faced with several simultaneous and immediately fulfilable legal obligations to act , but can only fulfill one of them.

General

The Hispanist Theresius von Seckendorf-Aberdar translated the conflict of duties in 1825 as the meeting of two opposing duties, the Brockhaus Encyclopedia defined the term in 1885 as the collision of duties .

In the case of a conflict of duties, at least two required duties to act collide, whereby one can only be fulfilled at the expense of the other. The acting legal entity faces the dilemma of a selection decision. The fulfilled duty must be of equal or higher rank to the unfulfilled, depending on the importance of the legal interests concerned , the extent of the threatened damage , the opportunities and risks of the actions required to avoid damage, the tolerance obligations of the legal owners concerned and the relationship of the acting party Legal entity directed towards legal guardian. Since the legal system must not demand the impossible from legal subjects, the legal question must be clarified as to whether the acting legal subject acted unlawfully due to a breach of duty (civil law) or by omission (criminal law) in the case of the unfulfilled obligations to act .

The justifying clash of duties only applies in the event of a collision between duties to act, but not in the event of a collision between duties to act and duties to refrain.

Examples

A typical example of a typical collision of duties is the lifeguard who observes two non-swimmers threatening to drown at the same time, but only able to save one of the two due to the different distances between the victims and their location. The legal good life is the same for both non-swimmers, so that the rescue of the more distant victim appears to be necessary (chances and risks of the required actions). The lifeguard may choose the more distant victim if it is his son; Parental custody has priority here (§ § 1626 ff. BGB ). If the lifeguard is faced with a drowning non-swimmer and a similarly distant sinking object , he must decide in favor of the non-swimmer, because the legal interest of personal injury is to be rated higher than the property damage .

If a doctor is faced with two patients in acute need of treatment , he must choose the one who is threatened with life at the expense of the only slightly injured person. A practical example is the emergency doctor who has to take care of two injured people in a traffic accident . He must first treat the seriously injured , then only the slightly injured .

Legal issues

In the event of a conflict of duties, it must always be checked whether the duties to act are of equal priority or not. If the duties differ in rank, the higher rank must be fulfilled first. If they are equal, one of the two has to be fulfilled, there is freedom of choice. Knowledge of the justifying situation is also required. There are conflicting duties in criminal and civil law .

Criminal law

If two or more legal requirements for action come together in such a way that either one or the other can be fulfilled, there is a real collision of duties in which the norm addressee has to fulfill the higher value in the case of differently valued actions, and one or the other in the case of equivalence. So at least two obligations to act must collide, whereby the fulfillment of one is only possible at the expense of the other. A duty must have been fulfilled.

It is controversial whether the actor is only excused for not doing the other action ( reason for excuse ). However, the prevailing opinion assumes that the neglect is not acting unlawfully and therefore even has a reason to justify it .

civil right

In civil law there are conflicts of duties arising from contracts or legal obligations , which can put someone in an unavoidable, involuntary predicament. For example, it is a no fault liability collision when at workers the obligation to work out of the employment contract with a duty of care ( § 1626 BGB, § 1627 BGB, § 1629 BGB and § 1631 collides BGB). Here, too, it applies that the employee may fulfill the higher-level duty without any adverse legal consequences arising for him . The employee may assert a right to refuse performance in accordance with Section 275 (3) BGB against his employer ; if his personal hindrance is insignificant, he retains his claim to remuneration ( § 616 BGB). In relation to the existing work obligation, an employee can only invoke a collision of duties due to personal care for her child ( Section 1627 BGB) and thus a right to refuse to perform or an impossibility or unreasonableness of work if independent of the weighing of the interests worthy of protection that must be taken into account in each case Both contracting parties are in a predicament through no fault of their own.

In corporate law gives the Board an AG of § 92 3 paragraph. AktG or the CEO of a GmbH ( § 64 sentence 1 GmbHG ) a conflict of duties, if he at insolvent these provisions to conserve according to the AG / GmbH insolvency estate is obligated and no May make more payments ( prohibition of payment ), but when fulfilling tax and social security obligations ( Section 266a (1) StGB ) as well as failing to meet these obligations, personal liability will arise. The Federal Court of Justice (BGH) initially denied a tortious fault under Section 823 (2) BGB in conjunction with Section 266a StGB, because the mass security obligation according to Section 64 (2) GmbHG takes precedence. The non-transfer of the employer's share is justified during the three-week period, so that there is no conflict of duties. While the BGH saw a conflict of obligations under civil law after the deadline between the claim from § 64 GmbHG and the claim from § 823 (2) BGB in conjunction with § 266a (1) StGB, it sees a conflict of obligations in this under criminal law . A conflict of duties with the benchmarks of insolvency law is ruled out because this only applies to the insolvency procedure itself, but cannot establish a hierarchy outside the matter regulated there. Contrary to the opinion of the Second Civil Senate, not two (equivalent) claims under civil law collided (Section 64 (2) GmbHG on the one hand and Section 823 (2) BGB in conjunction with Section 266a (1) StGB on the other hand). An inevitable collision of duties is not given here because the managing director could evade these conflicting duties at any time by filing for insolvency . Since 2007, the manager is no longer liable for the payments made to the social and financial funds during the three-week period.

Legal consequences

In criminal law, the offender must refrain from performing one of the required actions in order to be able to undertake any of them. The fulfillment of one duty leads to the accusation of neglecting the other duty with the consequence of failure to provide assistance ( Section 323c (1) StGB). Since the conflict of duties gives rise to a justification (or excuse), no punishment occurs. There is no justifying emergency .

A right to refuse performance due to a conflict of duties through no fault of one's own excludes the unlawfulness of the breach of duty in labor law , while the impossibility (inability) for which it is not responsible leads to discharge from the debt.

Individual evidence

  1. ^ Theresius Freiherr von Seckendorff, Diccionario de las lenguas española y alemana , Volume 1, 1825, p. 446
  2. ^ Friedrich Arnold Brockhaus, General German Real Encyclopedia for the Educated Estates , 1885, p. 901
  3. ^ Alpmann Brockhaus, Fachlexikon Recht , 2005, p. 1066
  4. ^ Wilfried Küper, Basic and Borderline Issues of the Justifying Clash of Duties in Criminal Law , 1979, p. 19
  5. Barbara Voß, Cost Pressure and Resource Scarcity in Medical Liability Law , 1999, p. 181
  6. Werner Beulke, Criminal Law General Part , 2009, p. 284
  7. Dreher / Tröndle , Criminal Code and ancillary laws , CH Beck, Munich 1995, before Section 32, p. 196.
  8. Hans-Heinrich Jescheck / Wolfgang Ruß / Günther Willms (eds.), Leipziger Comment StGB , Volume 2, 1985, p. 41
  9. Wilfried Küper , Basic and Borderline Issues of the Justifying Collision of Duties in Criminal Law , 1979, JuS 81, 785 and 87, 88; Roxin , Criminal Law, General Part, Volume I: Basics. The structure of the crime theory , 4th edition. Verlag CH Beck, Munich 2006, § 16, 100
  10. Georg Caspers, in: Staudinger Comment BGB , 2016, § 275 Rn. 109, 111
  11. BT-Drs. 14/6040 of May 14, 2001, draft law for the modernization of the law of obligations , p. 130
  12. BAG, judgment of May 21, 1992, Az. 2 AZR 10/92 = BAGE 70, 262
  13. Benedikt Schulz, restructuring management in crisis and self-administration , 2017, p. 325
  14. BGHZ 146, 264 , 274 f.
  15. BGHZ 146, 264, 274
  16. BGH NStZ 2006, 223 , 224 f.
  17. ^ BGH, judgment of May 14, 2007, Az .: II ZR 48/06 = BGH NJW 2007, 2118
  18. Hans-Heinrich Jeschek / Wolfgang Ruß / Günther Willms (eds.), Leipziger Comment StGB , Volume 2, 1985, p. 41 f.
  19. BAG, judgment of December 22, 1982 = BAGE 41, 229 , 243 f.