Expiration (German law)

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The decay was a repressive measure of the German criminal and regulatory offense law and must be distinguished from the antitrust benefit skimming and the preventive profit skimming by the police and regulatory authorities .

Through the law on the reform of the criminal asset recovery , the separate regulations of the forfeiture on July 1, 2017 in German criminal law were abolished and merged with the regulations of confiscation .

Criminal law

Requirements and scope

According to Section 73 of the Criminal Code , the forfeiture of a pecuniary advantage was ordered if the perpetrator had obtained it from an unlawful act. The purpose of this provision was to skim off unlawfully obtained asset growth, i.e. to eliminate unlawful enrichment. In the opinion of the Federal Court of Justice , however, the forfeiture was not a punishment, nor was it a measure similar to a penalty, but rather a "measure of its own".

The amount of the forfeiture was based on the gross principle . This means that not just the profit, but basically everything that the perpetrator had gained for the act or from it had to be declared forfeited ( Section 73 (1) sentence 1 StGB). Exceptions arise from the hardship clause in § 73c StGB.

The forfeit could also be ordered against the person who is not the perpetrator, but a participant in the illegal act. There was also no need to act at fault, as forfeiture was not a punishment. The legal sentence “nulla poena sine culpa” (Latin, no punishment without guilt) was therefore not applicable.

The order was not possible in accordance with Section 73, Paragraph 1, Sentence 2 of the Criminal Code if the injured party arose from the act, the fulfillment of which would have eliminated or reduced the advantage gained from the act. In this case, however, it was possible to confiscate the item as a recovery aid within the meaning of Section 111b (5) StPO .

If a certain item was no longer available or if it was not possible to expire for another reason, the perpetrator had to pay compensation according to Section 73a of the Criminal Code . This was to prevent the pecuniary benefits obtained from being sold or consumed in order to avoid deterioration. The court was able to estimate the scope and value ( Section 73b of the Criminal Code). In addition to the forfeiture, the extended forfeiture ( Section 73d StGB) was permissible. This had two differences compared to the conventional forfeiture: 1. the objects forfeited do not have to originate from a specific offense, but any other unlawful offense suffices, as long as the provision only refers to § 73d StGB. 2. The extended forfeiture can be ordered if only the circumstances justify the assumption (a concrete probability is sufficient) that the perpetrator or participant obtained the objects in question from or for an illegal act.

Legal consequences

The decay meant that ownership of the thing or the forfeited right passed to the state when the decision became final. Before it became final, the order acted as a prohibition on sale within the meaning of Section 136 of the Civil Code ( Section 73e of the Criminal Code).

Administrative offense law

By § 29a OWiG the managing authority or the competent court was authorized against the party who has committed an offense, or against a third party who had made the offense a pecuniary advantage to arrange the decline. The forfeiture could only be an amount of money in the law of administrative offenses. The forfeiture of property and rights was not provided for reasons of simplification.
The decay found practical application almost only in commercial law, but cases from water or environmental protection law or labor law are also conceivable. The decay was also used in commercial road traffic. Above all, the act of the perpetrator for a third party as a beneficiary was of practical importance. Other cases were extremely rare. The § 29a OWiG was a discretionary provision, the competent authority must therefore, within its margin of appreciation in compliance with the opportunity principle decide on the order of forfeiture.

Purpose of the regulation

The reason for Section 29a of the OWiG was the will of the legislature to skim off the benefits of an unlawful act in order to rule out a possible inequality of opportunity with law-abiding competitors, especially in commercial law. This should also include cases in which it was not possible to impose a fine to skim off the pecuniary advantage (e.g. due to lack of reproach, or because the beneficiary of the act was not the perpetrator). Section 29a of the OWiG thus prevents a loophole in the law that is unsatisfactory for the legislature.

Requirements for the arrangement

The forfeiture, as a secondary consequence, could only be ordered by the competent authority in compliance with the principle of opportunity and within the limits of Section 29a of the OWiG. This discretion saved the legislature from introducing a hardship clause analogous to Section 73c StGB.
This meant for the arrangement of the decay in detail:

  • An act threatened with a fine ( § 1 OWiG) was committed through which a pecuniary advantage was achieved and this cannot be skimmed off with a fine (so no fine was imposed for this act)
  • only with economically significant (e.g. if the competitive structure has been disrupted) advantages
  • there was a risk of repetition by others (acts of imitation)
  • there was a need to pacify the legal order
  • the effects of the decay do not mean undue hardship for the person concerned
  • the effort involved in ascertaining the facts of the case and ordering the forfeiture did not exceed the result achieved
  • it was not possible to levy off the beneficiary via a fine because of Section 30 in conjunction with Section 130 OWiG ( violation of supervisory duties ) (an employee committed an OWi for the benefit of the company).

Amount of levy

The amount of the levy was based on the obtained financial advantage and was not allowed to exceed it, but could fall below it at the discretion of the authority. For the assessment of the forfeiture amount, the pecuniary advantage that arose directly from the success of the act was decisive (e.g. an interest gain from the investment of the amount or a lottery win if the ticket was bought with the proceeds of the act are not ( !) to be considered). If an object was obtained through the act, its increase in value is to be taken into account until the time of the decision, but not a possible decrease in value.

The gross principle applied here. It was therefore not possible to deduct any costs that were expended to obtain the unlawful pecuniary advantage or, in the case of lawful conduct, hypothetical profits. This resulted from the wording "something" instead of the old wording "asset advantage", which was introduced with the AWStGB-AmendmentG of February 28, 1992. However, the Federal Court of Justice had criticized the application of the net principle for the amount of forfeiture orders in OWi law even before the law was changed.

When calculating the forfeited amount, it had to be taken into account whether the pecuniary advantage was still present and whether third party claims existed for the amount. In particular, it was important to ensure that the levy does not result in any financial disadvantages for third parties (e.g. who have claims in the amount of money).

If the exact amount of the financial advantage could not be determined, it was estimated by the competent authority on the basis of the facts available to it. This estimate must be substantiated for any subsequent appeal proceedings.

Procedure

The forfeiture was usually ordered when the fine proceedings were discontinued. In cases in which the initiation of proceedings was not initiated, e.g. B. on the basis of Section 47 OWiG or Section 170 StPO in conjunction with Section 47 (1) OWiG, it could also be ordered in an independent procedure.

Statute of limitations

The statute of limitations of the OWi according to § 31 OWiG also precluded the order of forfeiture. Sections 32 and 33 of the OWiG apply analogously to the interruption of the limitation period .

Individual evidence

  1. ↑ Law on the reform of the criminal asset recovery : text, amendments, reasons
  2. ↑ BGHSt 31, 145.
  3. ↑ BGH, judgment of August 21, 2002 - 1 StR 115/02 p. 10 ff. With differing literary opinion
  4. ↑ BGH NStZ 1995, 491
  5. ↑ Joecks in Munich Commentary on the Criminal Code , 1st edition 2005, § 73 Rn. 12; Tröndle / Fischer, StGB, § 73 Rn. 12
  6. ↑ Riess NJW 92, 493
  7. ↑ cf. Göhler Rn. 4a to § 29a OWiG
  8. ↑ cf. Komm. OWiG 2nd ed. 5th serial, marginal no. 3, Göhler Rn. 2.
  9. ↑ cf. Göhler Rn. 1 to § 29a.
  10. ↑ Göhler Rn. 2 f.
  11. ↑ cf. Komm. OWiG 2nd ed. 5th serial, marginal no. 14, Göhler Rn. 8th.
  12. ↑ cf. Göhler Rn. 8 to § 1
  13. ↑ cf. Göhler Rn. 8th.
  14. ↑ cf. Göhler Rn. 2, 15.
  15. ↑ cf. Komm. OWiG 2nd ed. 5th serial, RNr. 5, Göhler No. 10.
  16. ↑ cf. Komm. OWiG 2nd ed. 5th serial, marginal no. 10, Göhler No. 5.
  17. ↑ cf. KK-OwiG-Mitsch Rn. 42 f.
  18. ↑ BGBl. I p. 372.
  19. ↑ cf. Komm. OWiG 2nd ed. 5th serial, marginal no. 6, Göhler Rn. 4a.
  20. ↑ cf. Komm. OWiG 2nd ed. 5th serial, marginal no. 17, Göhler Rn. 11.
  21. ↑ cf. Göhler , RNr 12, 13.
  22. ↑ cf. Göhler , No. 14th

literature

  • Commentaries and textbooks on the StGB and general criminal law
  • Hans Theile : Basic problems of the criminal forfeiture regulations according to §§ 73 ff. StGB , ZJS 2011, 333, online (PDF; 130 kB).