Omission (Germany)

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In jurisprudence, omission (or: omission ) is an alternative to doing and tolerating , which consists in the complete inactivity of a legal subject .

General

Doing, tolerating and omitting are legal acts that lead to legal consequences if the latter presuppose a certain behavior on the part of a legal subject. Legal entities ( natural persons , companies , other associations of persons or the state with its public administration ) could remain inactive in a certain situation, although legal relations expect them to take action. The civil law proceeds from the fact that the illegal confiscation, denial or impairment is to be omitted from the right, otherwise the disadvantaged is a legal consequence an injunction granted. Statutory prohibitions prohibit certain legal transactions or actions through legal norms ; the prohibition demands an - expected and legally compliant - omission. The legal consequence of violations is the nullity of the contractual obligation .

The criminal law speaks of prohibitions when certain acts are prohibited. If someone violates this, he faces penalties as a legal consequence .

There are therefore two types of omission, namely the unlawful omission in which legal transactions would have expected action and the dutiful omission of actions that would violate prohibitions.

Etymology and history

The word omission appeared in Old High German as "untarlâʒan" for the first time in the 9th century with a different meaning. It was not until 1662 that Martin Luther was quoted posthumously with "... neglecting a lot that they do otherwise". As a legal term , omission appeared for the first time in Lower Austria in 1656 , when a mother claimed that her child did not die from murder, but from failure to provide maternal help. In 1746, Johann Heinrich Zedler gave the term its current meaning for the first time. The Prussian General Land Law (APL) of June 1794 defined omissions as "acts that are not declarations of intent" (I 3, § 32 APL). In contrast, the Austrian General Civil Code, which came into force in January 1812, avoided a legal definition of the widely used term. The German Civil Code, which has been in force since January 1900, also omits a definition.

Today omission is the adversarial opposite of doing or acting, the generic term is behavior . Failure to perform a specific, required action.

civil right

The right to cease and desist is an important part of various areas of law , in particular civil law , copyright , trademark and competition law .

Contract and property law

According to § 903 BGB, the owner of a thing can deal with his property as he likes and exclude others from any influence. If others act unlawfully on this, the basis of the civil law injunctive relief can be found in § 1004 BGB. The impairment of property triggers a claim for removal and injunctive relief (already known in Roman law as actio negatoria ) after the disruption , which can be enforced with an injunction if there is a risk of repetition. The Court has already in October 1929 by the Supreme Court in 1004 BGB (RG) targeted for the property under § all absolute rights expanded and in addition to all tort legally protected legal interests expanded. Structurally analogous rights are granted by § 12 sentence 2 BGB to the bearer of the name in the case of naming rights , § 541 BGB to the landlord in the event of use by the tenant in violation of the contract and § 862 (1) sentence 2 BGB to the owner in the event of property damage . According to Section 241 (1) of the German Civil Code (BGB), performance in the case of contractual obligations can also consist of an omission, such as a declaration of omission under competition law. Under the law of obligations , omission is the obligation of the debtor not to do something specific that he would be entitled to do.

Anyone who uses clauses in general terms and conditions that are ineffective according to Sections 307 to 309 of the German Civil Code or recommends them for legal transactions can, in accordance with Section 1 of the UKlaG, be relied on to cease and desist and, in the case of recommendation, to revoke them.

Tort law

In tort law, failure to do so can only trigger an obligation to pay compensation if the perpetrator is subject to traffic safety obligations or if there is a guarantor as a protector or supervisor. Otherwise the failure to do so is not illegal .

The supervisor guarantor is the person who created a source of danger or is responsible for it. For example, anyone who digs a pit and does not secure it, into which someone could fall, or who does not clear the snow on his section of the sidewalk, violates his legally mandated monitoring obligations. This also includes the previous behavior that is contrary to duty, the so-called Ingerenz and the "state liability".

Protector guarantor is the person who has a special duty to protect a legal asset. This duty to protect can arise from personal ties (marriage, close relatives) or from the actual assumption of the guarantee for the legal asset (whereby a contractual obligation can also be ineffective, therefore actual assumption). Otherwise, an obligation to protect can also result from the law.

Copyright, patent and trademark law

Failure to infringe intellectual property is of great economic importance . With the right to cease and desist granted, the right holder can, for example, defend himself against illegal downloads from the Internet ( music , video or film files , file sharing ) by issuing a warning and a declaration of cease and desist. The addressees of the laws protecting intellectual property are so-called infringers.

In accordance with Section 97 (1) UrhG, anyone who violates copyright law can be sued by the author to remove the impairment or, if there is a risk of repetition, to cease and desist. The right to cease and desist also exists if there is a threat of an infringement for the first time. The omission can be recognized by the fact that the infringer will refrain from infringing copyright in the future . Anyone who violates Section 95b (1) UrhG can be sued for injunctive relief in accordance with Section 2a UKlaG.

A comparable cease and desist norm is contained in Section 139 (1 ) PatG for patents , Section 14 MarkenG for trademarks , Section 15 TrademarkG for a business name and Section 24 (1) GebrMG for utility models .

Commercial law

Anyone who is violated in their rights by someone else using a company name without authorization can demand that the company cease to use the company in accordance with Section 37 (2) HGB . In this company law injunction, formal and material company law seem to touch. This is the parallel provision to § 12 BGB for private individuals .

The omission of the depreciation is to be explained in the appendix according to § 285 No. 18b HGB (according to § 314 Abs. 1 No. 10b HGB also in the consolidated financial statements ). According to Section 286 of the German Commercial Code (HGB), information in the annual financial statements may be omitted under certain conditions.

The board of directors is committed to loyalty to the stock corporation . If he violates the general duty of loyalty to the company, he can be called upon to cease and desist. Special forms of the duty of loyalty are the non-competition clause ( § 88 AktG) and the duty of confidentiality ( § 93 para. 1 AktG).

Competition law

According to § 3 UWG , unfair business actions are not permitted; Section 5a of the UWG deals with misleading by omission, such as withholding a fact or misleading advertising . In accordance with Section 8 UWG, the infringer can be sued for removal and - if there is a risk of repetition - for omission. In addition to failure to act, unfair competition can also trigger civil law claims for damages ( Section 9 UWG), profit skimming ( Section 10 UWG) or reimbursement of warning costs ( Section 12 (1) UWG).

Legal consequences

All injunctive relief claims can be enforced in civil proceedings. In civil procedural law, omission is inactive behavior that does not influence a certain causal process. The omission occurs in two cases:

  • The debtor can be obliged not to influence a certain course of events by his inaction or
  • the debtor can be obliged to take an active part if he maintains and continues to exploit existing impairments.

Accordingly, if the debtor violates the obligation to refrain from an act or to tolerate the performance of an act, he is, in accordance with Section 890, Paragraph 1, of the German Code of Civil Procedure ( ZPO) due to an infringement at the request of the creditor by the trial court to a fine and in the event that this can not be collected, for administrative detention to sentence up to six months. The individual fine may not exceed the amount of 250,000 euros, the amount of regular detention may not exceed two years.

Criminal law

General

An omission leads to liability or a penalty if a command or obligation is justified to carry out the act actually omitted. Responsibility for a success that has occurred (example: death of a person) presupposes that a command has been disregarded that was created to prevent this success through a suitable action. The legal basis for this is § 13 StGB , the so-called compliance clause . It expresses the equality of action and omission in criminal law . The prerequisite for the objective attribution of success is the proof that the required action cannot be considered in the context of the reversal of the condicio sine qua non formula without the success having been prevented with a probability bordering on certainty, the failure to perform the required action is therefore causal for the success that occurred.

In criminal law, a distinction is made between two types of omission offenses. This difference is based on the systematics of the law:

  • Genuine omission offenses are criminal offenses that can only be committed through failure to act: Examples in German law: § 323c Failure to provide assistance and § 138 StGB failure to report planned criminal offenses ; in Swiss law: Art. 128 failure to provide emergency aid and Art. 217 StGB neglect of maintenance obligations.
  • False omission offenses are criminal offenses that can be committed through positive action or failure to act. The criminal liability arises dogmatically from a synopsis of the general part of criminal law with an offense of the special part: In German law, for example, killing a person is prohibited in Section 212 of the Criminal Code. Its wording “whoever kills someone else will be punished” only refers to one act. In Section 13 of the Criminal Code, omission is now equated with action. Combined, both norms would result in the following wording: "Whoever kills a person or does not prevent a person from being killed, although he is obliged to do so, is punished". This systematic procedure by the legislature shortens the legal text for the sake of clarity, since the corresponding omission does not have to be formulated in the special section for each action.

Warrantee status and obligation to guarantee

In both offenses, the perpetrator is required to perform an action. This action must have been possible and reasonable for him. He must recognize that he is called upon to act, but willfully fail to do so . In contrast to the "real omission offenses", the perpetrator also has a special legal obligation to act in the case of "spurious omission offenses" , a guarantor obligation that arises from his position as a guarantor. In these cases, he acts deliberately, if he has knowledge of all objective criteria (including his position as a guarantor), continues to be aware of the possibilities of averting success and formulates himself a will to remain inactive. It is conceivable in connection with the intentional charge that the perpetrator is subject to a factual error with regard to his position as guarantor, which can exonerate him in individual cases.

illegality

Deliberate (un) genuine omission offenses do not qualify as injustice if they are justified. In particular, the justifying conflict of duties should be considered here. This is particularly conceivable if only one of several equal duties can be fulfilled and only one is fulfilled (example: advanced apartment fire. Paramedic X rescues A, although A and B are equally in need, which is why B is ultimately seriously injured). A justification based on a conflict of duties can also result from the fact that from several duties of different importance the one that is higher is chosen (fireman Y saves A instead of a dog trapped by the flames).

Others

In § 13 para. 2 of the Criminal Code is by reference to the sentencing provision for special statutory mitigating circumstances, § 49 of the Criminal Code, stipulates that the penalty of failure offender may turn milder than the offender, which causes the factual success through positive actions.

The passage “offense of a criminal law” in Section 13 of the Criminal Code clarifies the prohibition of analogy under Article 103 (2) of the Basic Law , according to which the protective norm must be formulated positively.

The Federal Constitutional Court has declared the provision to be constitutional, although there have been concerns about the requirement of certainty in the literature . In particular, more detailed provisions on the guarantee obligation are missing.

International

In Austrian law, the omissions are also part of the actions, as § 917 ABGB clearly expresses. Failure to do so includes § 43 ABGB (right to name), § 227 ABGB ( custody ), § 472 ABGB, § 476 ABGB, § 482 ABGB ( servitut ), § 861 ABGB ( contract ), § 964 ABGB (custodial liability), § 1294 ABGB , § 1301 ABGB ( damage ) or § 1350 ABGB ( guarantee purpose ). In Switzerland , for example, there is an omission in naming law ( Art. 29 ZGB ) or Art. 921 , Art. 928 ZGB ( possession ).

literature

  • Stephan Ast : Norm theory and criminal law dogmatics. A systematization of types of norms and their use for questions of the attribution of success, in particular the delimitation of the commission from the omission offense , Duncker & Humblot, Berlin 2010, ISBN 978-3-428131747 .
  • Carl Bottek: Failures and Their Consequences. Action and causality theoretical considerations. Mohr Siebeck, Tübingen 2014, ISBN 978-3-16-153161-3 .
  • Theo Jung (Ed.): Between acting and not acting. Practices of omission in European modernity , Campus, Frankfurt a. M. 2019, ISBN 978-3-59-351006-4 .
  • Armin Kaufmann : The dogmatics of omission offenses , Schwartz & Co., Göttingen 1959.
  • Klaus Otter : Functions of the concept of action in the structure of crime? , Röhrscheid, Bonn 1973.
  • Gustav Radbruch : The concept of action in its meaning for the criminal justice system. At the same time a contribution to the teaching of the jurisprudential systematic Berlin 1904.
  • Claus Roxin : Criminal Law. General part. Volume II: Special manifestations of the criminal offense , CH Beck, Munich 2003, ISBN 3-406-43868-7 , pp. 625–706.

Web links

  • Marten Selbmann, classification of the BGH judgment of October 20, 2011 - 4 StR 71/11 = HRRS 2012 No. 74 in the dogmatics of business owner liability [1]

Individual evidence

  1. ↑ Benno Mugdan , The entire material on the Civil Code for the German Empire , Volume I, 1899, p. 421
  2. ↑ Ulrike Köbler, Werden, Wandel und Wesen des German private law vocabulary , 2010, p. 401
  3. ↑ Martin Luther, The Eighth Part of All Teutschen Books and Writings of the dear, blessed man of God , Volume 8, 1662, p. 981
  4. ↑ Johann Heinrich Zedler (Ed.), Des Theuren Mannes Gottes, D. Martin Luthers all parts made by himself in German , Volume 12, 1731, p. 539
  5. ^ Lower Austrian regional court order from 1656, in: Codex Austriacus , 1704, p. 659 ff.
  6. ↑ Johann Heinrich Zedler, Large, complete universal lexicon of all sciences and arts , 1746, column 455
  7. ↑ Jörg Fritzsche, injunction and injunction , 2000, p. 7 ff.
  8. ↑ Gerhard Köbler, Etymological Legal Dictionary , 1995, p. 419
  9. ↑ Marcus Grosch, legal change and legal force in injunctive relief , 2002, p. 35
  10. ^ RG, judgment of October 9, 1929, Az .: I 63/29 = RGZ 125, 391
  11. ^ RG, judgment of January 5, 1905, Az .: VI 38/04 = RGZ 60, 6, 7
  12. ↑ Otto Palandt / Christian Grüneberg, BGB Commentary , 73rd edition, 2014, § 241 Rn. 4th
  13. ^ Alpmann Brockhaus, Fachlexikon Recht , 2005, p. 1353