Corporate criminal law
As a Corporate Crime , also Association Criminal Law a branch of is white collar crime refers to the sanctioning of legal entities and individuals by criminal organizations punish controls.
There is currently no corporate criminal law in Germany, as criminal law only allows the punishment of natural persons , not the legal persons for whom they have acted. One possibility of sanctioning companies is currently only under the regulatory offense law , above all § 30 OWiG . The reason for this is that legal persons are incapable of acting and guilty according to the existing doctrine of criminal law and are therefore not liable to prosecution . For decades it has been debated whether the legislature should create a legal basis for punishing legal persons for the behavior of their representatives and employees.
In German law, companies are currently sanctioned via the law on administrative offenses and only indirectly - above all according to Section 73b (1) No. 1 StGB and Section 74e StGB - via criminal law .
The legitimation of a criminal penalty for companies is controversial. In part, it is argued against the need for such a penalty that the previous system of penalties under administrative offense law is sufficient. Any deficits, such as an excessively low range of fines or a lack of types of sanctions, could also be remedied by adapting the Law on Administrative Offenses (OWiG).
More serious are the dogmatic of criminal law and / or constitutional law concerns that are expressed against the criminal sanctioning of companies. Above all, this concerns the incompatibility with the guilt principle , according to which no one may be punished who is not at fault . According to h. M. assumes that the perpetrator can be accused of having decided against the right and for the wrong. This decision requires a socio-ethical awareness that can only be present in natural persons, not in companies.
Instead of sanctions, the entrepreneur demands a reward system depending on the degree of the company's internal compliance efforts.
Administrative offense law
The origin of fines against legal persons and associations of persons for Germany lies in antitrust law . In 1929 the Cartel Court at the Reich Economic Court imposed a “fine” of ℛℳ 50,000 against the North German Cement Association , and in 1932 a fine of ℛℳ 30,000 against the South German Coal Industry Association. The following laws, such as the Economic Criminal Act of 1949, provided for fines. In 1968 a comprehensive legal basis was created with Section 19 OWiG .
Today the central legal norm in the law on administrative offenses for the sanctioning of companies is § 30 OWiG. According to this provision, a legal person or association of persons can be fined up to ten million euros if a criminal offense or administrative offense has been committed by an organ, a representative or another person entrusted with the management of the company, due to the obligations which affect the legal person or the association of persons, have been injured or the legal person or the association of persons has been or should be enriched.
This standard enables sanctions to be imposed based on the act of a member of the company. In addition to the penalty of ten million euros, the possibility of skimming off profits according to Section 17 (4) OWiG is of particular importance. Through this provision, the economic advantage that the company has received through the act can be confiscated . If this advantage exceeds the legal maximum of the association fine of ten million euros, this limit can be exceeded.
If no fine is set, according to § 29a OWiG the possibility of confiscating the value of the proceeds of the crime (previously called forfeiture ). This is the secondary consequence of an administrative offense in the form of a property levy which is intended to ensure that the beneficiary does not benefit from the act (“crime does not pay”). The confiscation can not only be directed against the perpetrator of the regulatory offense, but according to Section 29a (2) No. 1 also against another for whom the perpetrator acted, for example a legal person.
Criminal Law and Criminal Procedure Law
The criminal sanctioning of companies also takes place exclusively through confiscation according to §§ 73 ff. StGB. As in regulatory offense law, this confiscation is primarily set against the perpetrator or participant. However, if the latter “acted for someone else and has thereby gained something”, the other person can also be ordered to confiscate the crime (previously called forfeiture ) in accordance with Section 73b (1) No. 1 of the Criminal Code . Any natural or legal person or group of persons can be other in this sense. The products of the offense, the means of the offense and the objects of the offense can also be confiscated from others (Section 74a), whereby the offender's act is attributed to the other, if he is a legal person or an association of persons (Section 74e).
While the confiscation of the products of the crime, the means of the crime and the objects of the crime is still ascribed the criminal character, the confiscation of the proceeds of the crime (forfeiture) is, according to the predominant opinion, not a punishment within the meaning of constitutional law. For a company affected by the forfeiture, this is in fact a sensitive sanction: due to the so-called gross principle , the company affected by the forfeiture not only has to surrender the net profit, but all of what has been obtained for the crime or from it. Profit-reducing costs can therefore not be deducted upon expiry.
The Federal Court of Justice has specified this as follows:
“In any case, the abandonment of the previous formulation and the choice of the new formulation, in conjunction with the declared intention of the legislature, require the interpretation that economic values that have been achieved in any phase of the course of the crime (each 'something') are recorded and siphoned off in their entirety should […]."
According to the Federal Court of Justice, with the skimming off of what is gained in excess of the net profit, “primarily a preventive purpose” is pursued, which is intended to help “prevent profit-oriented crimes”.
The BGH has expressly made it clear that in this way the person affected by the forfeiture - and thus the company - bears the risk of criminal behavior by its members, even if this can mean a considerable economic disadvantage for the company. However, the BGH regards the corresponding legal regulations (and the interpretation in terms of the gross principle) as lawful:
“The Senate does not fail to recognize that the gross principle can inflict a - sometimes considerable - economic disadvantage on the person affected. This is justified, however, in the fact that property is not accessed that has been acquired but that has been criticized by previous illegal acts. It is not about repression or retaliation. Because forfeiture does not presuppose any guilt-related individual reproach, it cannot and should not serve to settle (individual) guilt. […] The guilt principle is therefore not applicable to forfeiture. This also applies if this is ordered according to the gross principle beyond the pecuniary advantage [...]. "
In terms of procedural law, the confiscation order against the company is implemented by involving the company in criminal proceedings via §§ 421 ff. StPO . The affected legal person or association of persons then has the position of a secondary participant according to §§ 421 ff, § 424 StPO (confiscation participant).
Bill of the state of North Rhine-Westphalia (2013)
In 2013 a corresponding legislative proposal was published by the state of North Rhine-Westphalia. The draft law tried to tie in with the "specific association injustice" by standardizing association criminal offenses. It consists in the fact that the association is poorly organized in such a way that delinquent behavior is tolerated, encouraged or even provoked. This relationship is summarized in the term “organized irresponsibility”.
The central norm for the criminal sanctioning of companies was in the draft law of the state of North Rhine-Westphalia § 2 VerbStrG-E:
"Section 2 Association crimes
(1) If an association-related infringement has been committed intentionally or negligently by a decision-maker in the perception of the affairs of an association, an association sanction is imposed on the association.
(2) If an association-related infringement has been committed in the perception of the affairs of an association, an association sanction is imposed on the association if a decision-maker of this association has intentionally or negligently neglected reasonable supervisory measures, in particular of a technical, organizational or personnel nature which would have prevented the infringement or would have made it much more difficult. "
According to § 3 Abs. 1 VerbStrG-E “the provisions of the general part of the Criminal Code apply mutatis mutandis, unless they are exclusively applicable to natural persons and this law does not stipulate otherwise”.
As a punishment, the draft law provided for the liquidation of the company as a last resort in addition to the fine. Such a company liquidation has not yet been provided for in criminal and administrative offense proceedings, but can only be brought about in administrative proceedings, for example via Section 62 GmbHG.
However, the company is given the opportunity to reduce penalties through suitable preventive compliance efforts.
The draft did not make it into the federal legislative process. He is therefore considered to have failed.
Cologne draft (2017)
In 2017, the Cologne draft of an association sanctions law was presented to the “Research Group on Association Criminal Law”. Although this proposal received a great deal of attention and discussion, it did not result in a legal procedure.
Federal Ministry of Justice's draft bill (2019)
On August 22, 2019, the Federal Ministry of Justice and Consumer Protection (Federal Ministry of Justice ) presented the draft bill for a law to combat corporate crime. Its core element is the draft of a new law, the law on the sanctioning of association-related crimes (so-called " Association Sanctions Act " or, for short, VerSanG-E). On April 22, 2020, the Federal Ministry of Justice presented a revised draft bill. The revision had become necessary due to different views between the ministries and also between the coalition parties of the CDU / CSU and SPD. The draft law is now entitled Law to Strengthen Business Integrity. One of the most important changes is that the dissolution of the association (e.g. the dissolution of the sanctioned GmbH) has been deleted from the catalog of sanctions. In addition, clubs no longer fall within the scope of application. On June 16, 2020, the federal government passed this draft unchanged despite the strong criticism from numerous business associations, experts and parts of the CDU and CSU .
The criminal liability of legal persons ( societas delinquere non potest ) is alien to German criminal law .
Since the late 1990s, a number of EU legal acts have provided liability and sanctions against legal persons. The details of the national implementation vary considerably. There are also various regulations on corporate criminal liability outside of Europe.
According to the Austrian Association Responsibility Act (VbVG), legal entities and partnerships, in particular stock corporations, European stock corporations, limited liability companies, private foundations, associations, open companies, limited partnerships and European economic interest groups can be prosecuted with an association fine if a decision-maker or an employee takes a court has committed a criminal act and this can be attributed to the association.
A conceptual and differentiating categorization of sanctions, as is characteristic of German law with the distinction between criminal punishment and administrative offense sanctions, does not exist to this extent in other countries. The international comparison reveals in part an unsystematic, almost colloquial use of the term punishment with regard to the sanctioning of companies. As a look at the Austrian VbVG shows, in other countries the focus is on the effect of a sanction on the company and not on its designation as a criminal penalty. Thus, no argument can be drawn from the international comparison for the necessity of a German Association Criminal Code, since the German administrative offense law with the association fine according to Section 30 of the OWiG provides for an effective possibility of sanctions and could be optimized without dogmatic breaches, for example by the company council or the reduction of enforcement deficits when applying the applicable law .
- International Comparative Legal Guides (ICLG): Business Crime 2018 , each under 4 Corporate Criminal Liability
- Research proposal "Legislative initiative of the State Ministry of Justice of North Rhine-Westphalia for the introduction of association responsibility (so-called corporate criminal law)": Draft law University Viadrina , extensive list of sources (2015)
- Dominik Brodowski (Ed.): Regulating corporate criminal liability . Springer, Cham 2014, ISBN 978-3-319-05992-1 ( limited preview in the Google book search).
- Eberhard Kempf, Klaus Lüderssen, Klaus Volk (eds.): Corporate criminal law . De Gruyter, Berlin 2012, ISBN 978-3-11-028316-7 ( limited preview in the Google book search).
- Mark Pieth , Radha Ivory (ed.): Corporate criminal liability: emergence, convergence, and risk (= Ius gentium: comparative perspectives on law and justice . Volume 9 ). Springer, Dordrecht 2011, ISBN 978-94-007-0673-6 ( limited preview in Google book search). Especially for the USA, England / Wales, Scotland, France, the Netherlands, Switzerland, Germany, Italy, Spain, Chile, Hungary and the Czech Republic.
- Ulrich Sieber, Gerhard Dannecker, Urs Kindhäuser, Joachim Vogel, Tonio Walter (eds.): Criminal law and commercial criminal law - dogmatics, comparison of laws, legal facts. Festschrift for Klaus Tiedemann on his 70th birthday, Carl Heymanns Verlag, Cologne and Munich 2008
- Celia Wells: Corporations and criminal responsibility . 2nd ed. OUP, Oxford 2001, ISBN 0-19-826793-2 ( limited preview in Google book search).
- Hans de Doelder, Klaus Tiedemann (eds.): La criminalization du comportement collectif: XIVe Congrès international de droit comparé = Criminal liability of corporations: XVIth International Congress of Comparative Law . Kluwer, The Hague 1996, ISBN 90-411-0165-9 ( limited preview in Google book search). Especially for Germany, Australia, Belgium, Canada, Finland, France, Italy, Japan, the Netherlands, Portugal, Russia, Switzerland, the United Kingdom and the USA.
- ^ Hauke Brettel, Hendrik Schneider: Wirtschaftsstrafrecht Baden-Baden, 2014, p. 76 ff.
- ↑ Kathleen Mitteldorf: On the range of individual criminal responsibility in the company for misconduct by subordinate employees ZIS 2011, pp. 123–128
- ↑ Federal Bar Association : On the draft of a law introducing the criminal liability of companies and other associations, Opinion No. 15/2014, April 2014
- ↑ a b Federal Court of Justice: decision of 03/18/1952, Ref .: GSSt 2/51. Retrieved March 15, 2020 .
- ↑ comply. June 2015, p. 12 ff.
- ↑ § 17 of the ordinance against the abuse of economic power of November 2, 1923 ( RGBl. I p. 1067 )
- ↑ Az. K 271/28, collection of decisions and reports of the Cartel Court No. 110 = KartRdsch. 1929 p. 213. - Jakob Herle, Max Metzner: New contributions to the cartel problem . Berlin 1929, p. 81 ( limited preview in Google Book search). - From a building union perspective: Der Grundstein 24 (1929) pp. 141 and 174 ff.
- ↑ Az. K 274/31, collection of decisions and reports of the Cartel Court No. 183 = KartRdsch. 1932 p. 476
- ↑ Sections 23, 24 of the Law on the Simplification of Commercial Criminal Law of July 26, 1949 ( WiGBl p. 193)
- ↑ Explanation of the law: BT-Drs. V / 1269 pp. 57-62
- ↑ Michael Heuchemer in: Beck'scher Online Comment StGB (BeckOK StGB), publisher: von Heintschel-Heinegg, as of November 10, 2014, edition: 25, § 73 Rn. 22nd
- ↑ BGH , judgment of November 19, 1993 - 2 StR 468/93, NStZ 1994, 123–124 (124.)
- ↑ BGH , judgment of August 21, 2002, Az. 1 StR 115/02, NJW 2002, 3339 (3340–3341); Complete quotation of the corresponding passage: “The gross principle should not only make the arrangement of forfeiture more practicable with regard to its calculation. Rather, the skimming off of what is gained beyond the net profit primarily pursues a preventive purpose. The result aimed at by the fact that the expenditures were also useless is intended to help prevent profit-oriented crimes - and this is what the legislature wanted to capture in particular. If, on the other hand, the person concerned only had to fear that the proceeds of the crime would be skimmed off, the commission would be largely risk-free from a financial point of view. The legislature had this prevention purpose in mind - the person affected by the decay should bear the risk of criminal action - when he referred to the legal concept of § 817 sentence 2 BGB when he emphasized that what was invested in a prohibited business should be irretrievably lost. "
- ↑ BGH , judgment of August 21, 2002, Az. 1 StR 115/02, NJW 2002, 3339 (3341).
- ^ Federal Chamber of Lawyers : Theses of the Federal Chamber of Lawyers on Corporate Attorneys in Criminal Law BRAK Opinion No. 35/2010, p. 8
- ↑ Michael Kilchling: Lecture on Sanctions Law # 12 Max Planck Institute for Foreign and International Criminal Law 2014, p. 11
- ^ Draft of a law to introduce criminal liability of companies and other associations (legislative proposal by the state of North Rhine-Westphalia from 2013), State Parliament of North Rhine-Westphalia, Information 16/127 . Jürgen Wessing: Corporate Criminal Law: Draft of an Association Criminal Code (2014).
- ^ Matthias Jahn, Franziska Pietsch: The NRW draft for an association penal code. An introduction to the concept and its follow-up questions ZIS 2015, pp. 1–4. The topos goes back to the sociologist Ulrich Beck (“Gegengifte: Die organized Irresponsibility”, 1988, ISBN 3-518-11468-9 ).
- ↑ Carsten E. Beisheim: "Some companies have to go". Compliance under more stringent conditions - NRW is pushing the introduction of corporate criminal law in 2014
- ^ Beschorner, Thomas: Fine for Volkswagen - An Incentive to Fraud , Spiegel Online , June 14, 2018, accessed on April 13, 2019.
- ↑ Henssler, Martin et al .: Cologne draft for the Association Sanctions Act, in: New Journal for Economic, Tax and Corporate Criminal Law (NZWiSt) 2018, 1 (6).
- ↑ a b Hoven, Elisa / Kubiciel, Michael: Korrpution: Ende der Schonzeit , Zeit Online , June 17, 2018, accessed on April 16, 2019.
- ↑ a b Beisheim, Carsten / Jung, Laura: Corporate Criminal Law: The new Cologne draft of an Association Sanctions Act (VerbSG-E), in: Corporate Compliance Zeitschrift (CCZ) 2018, 63–67.
- ^ Research group for criminal law associations, University of Cologne
- ↑ Henssler, Martin et al .: Cologne draft for the Association Sanctions Act, in: New Journal for Economic, Tax and Corporate Criminal Law (NZWiSt) 2018, 1
- ^ Elisa Hoven, Michael Kubiciel: Association Sanctions Act - A Small Revolution in Criminal Law. In: FAZ. November 6, 2019, accessed February 29, 2020 .
- ↑ Dr. Christian Caracas: Statement on the ministerial draft of a law to strengthen business integrity. June 12, 2020, accessed June 12, 2020 .
- ↑ BGH, July 25, 1952 - 1 StR 272/52, BGHSt 3, 130, 132; Rupert Scholz : Criminal liability of legal persons? ZRP 2000, pp. 435-440
resolutions still valid at the beginning of 2018 (2001–2008):
2001/413 / JI (cashless means of payment) Art. 7, 8;
2003/568 / JI (bribery in the private sector) Art. 5, 6;
2004/757 / JI (drug trafficking) Art. 6, 7;
2005/667 / JI (pollution from ships) Art. 5, 6;
2008/841 / JI (organized crime) Art. 5, 6;
2008/913 / JHA (Racism and Xenophobia) Art. 5, 6;
Directives (from 2008):
2008/99 / EC (environmental protection) Art. 6, 7;
2009/52 / EC (employees without a residence permit) Art. 11, 12;
2005/35 / EC (marine pollution from ships) Art. 8a, 8b (2009);
2011/36 / EU (human trafficking) Art. 5, 6;
2011/92 / EU (child pornography) Art. 12, 13;
2013/40 / EU (information systems) Art. 10, 11;
2014/57 / EU (market manipulation) Art. 8, 9;
2014/62 / EU (counterfeiting) Art. 6, 7;
2017/541 (terrorism) Art. 17, 18;
2017/1371 (EU fraud) Art. 6, 9
- ↑ Belgium : art. 5 , 7 to CP / Sw (1999); Denmark : §§ 25, 75 Straffeloven (1996); Germany : Section 30 OWiG (1968, BT-Drs. V / 1269 pp. 57–62; confiscation of the proceeds of crime : Sections 73b , 73c StGB ); Finland : 9 luku RL (1995); France : art. 121-2 CP (1992); Italy : D.Lgs. 231/2001 ; Croatia : NN 151/2003 ; Latvia : 12., 70. 1 p. KL (2005); Liechtenstein : Section 74a of the Criminal Code (2010); Lithuania : 20, 43 st. BK (2000); Luxembourg : art. 34 CP (2010); Netherlands : art. 51 Sr (1976, Kamerstuk 13655 ); Austria : Association Responsibility Act ( VbVG 2005; expiry: § 20 StGB ); Poland : Dz.U. 2002 no 197 poz. 1661 ; Portugal : art. 11, 90a CP ; Romania : art. 135 CP ; Sweden : 36 cap. 7 § BrB ; Switzerland : Art. 102 StGB ( BBl 1999 II pp. 2136–2145 ; confiscation : Art. 70 StGB ); Slovakia : 91/2016 Z. z. ; Slovenia : ZOPOKD (1999); Spain : art. 31 to CP (2010); Czech Republic : Zákon č. 418/2011 Sb . ; Hungary : 2001. évi CIV. törvény ; United Kingdom : Case and statute law such as the Corporate Manslaughter and Corporate Homicide Act 2007 or the Bribery Act 2010
- ↑ Australia : s. 12.1 Criminal Code Act 1995 (Cth) ; Canada : ss. 22.1, 22.2 CC ; Israel : סעיף 23 חוק העונשין ; Japan : 両 罰 規定ryōbatsu kitei "dual liability" (from 1932); Example: Art. 201 PatG ( memo of February 28, 2018 in the Internet Archive ); South Africa : s. 332 Criminal Procedure Act, 1977 ; Turkey : KabahatlerK m. 43 / A (2009), TCK m. 60 ; United States : MPC § 2.07 (1962); Federal law: 18 USC § 3571 (1984), special laws such as the Foreign Corrupt Practices Act ( 15 USC § 78ff )
- ↑ Association Responsibility Act ("Corporate Criminal Law") Austrian Chamber of Commerce , accessed on January 4, 2017
- ↑ Bernd Schünemann : The current demand for an association criminal law - A criminal policy zombie ZIS 2014, p. 1, 18
- ↑ Markus Löffelmann: Introduction of an association criminality? ( Memento from January 4, 2017 in the Internet Archive )recht + politik, January 2, 2014