Breach of maintenance obligation

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The violation of the maintenance obligation is an offense according to German criminal law , which according to § 170 StGB can be punished with imprisonment of up to three years or a fine , under certain circumstances also with imprisonment of up to five years.

Legal text

The regulation of § 170 StGB reads literally:

(1) Anyone who evades his statutory maintenance obligation so that the subsistence needs of the dependent is endangered or would be endangered without the help of others will be punished with imprisonment for up to three years or with a fine.

(2) Anyone who is obliged to maintain a pregnant woman and withholds this maintenance in a reprehensible manner and thereby causes the termination of pregnancy is punished with imprisonment for up to five years or with a fine.

Section 170 of the Criminal Code is a specific endangering offense as well as a permanent offense . In Paragraph 1, the provision serves to protect the dependent from endangering their material needs and the use of social benefits due to the need for assistance , Paragraph 2 also provides freedom of choice for the pregnant woman and the protection of unborn life.

Objective fact

An objective element of the basic offense according to Section 170 (1) StGB is the existence of a statutory maintenance obligation . The maintenance obligation requires a legal relationship ( § 1360 , § 1569 , § 1601 BGB, § 5 LPartG ). This includes the ability of the offender and the need of the dependent as sub-elements . Women who are obliged to pay maintenance can also commit an offense under this law. The perpetrators, however, are predominantly men, as women are far less liable to pay cash maintenance.

Statutory maintenance obligation

The scope of protection of Section 170 StGB only includes the statutory maintenance obligations, so that contractually based obligations, e.g. due to a settlement, are eliminated.

The legal relationship must result from the law or, which is particularly relevant in the case of illegitimate fathers, be justified by judicial determination of paternity . In this context, maintenance obligations towards all conceivable beneficiaries come into consideration, i.e. towards the spouse or life partner after the dissolution of the civil partnership , towards parents as well as legitimate or illegitimate children.

Efficiency

The ability of the maintenance debtor to pay is not found in the legal text, but is an unwritten factual feature.

Only those who are able to perform at least in part without endangering their own existence or the claims of senior maintenance creditors are capable of performing. The retention law deductible is used here.

The criminal judge himself has to determine the efficiency in full. The criminal judge may allow himself to be guided by the maintenance obligations established by the family court, but he may not assume them without review. This is particularly relevant in practice if the civil law conviction for child maintenance is based on the fictitious income of the maintenance debtor or, what was possible in the case of a conviction in the amount of the standard requirement according to the standard amount regulation , in the civil law proceedings a reversal of the burden of proof had taken place, so that The convicted person was assigned fictitious income that he was actually unable to achieve. The criminal court must provide concrete evidence of which employment opportunities could have been taken up and which income could have been achieved.

An inter omnes acting establishing paternity , however, is also binding in criminal proceedings.

Since the guilt and thus the sentence are also largely determined by the amount and over what period of time the perpetrator is productive, it is not sufficient here to state that the person is able to do so in any case, but rather it is necessary for the public prosecutor to investigate the facts explains how it is necessary to quantify the performance of the perpetrator in the indictment .

Escape

The act of “evading the maintenance obligation” is most clearly committed when the perpetrator simply does not pay maintenance despite his or her ability to work and does not, of course, grant his child this in the form of accommodation, food and clothing. According to Section 1612 of the German Civil Code (BGB), sentence 2, the parent concerned can, however, justifiably demand that he or she be allowed to maintain their own child naturally. This follows from Article 6 of the Basic Law, Paragraph (2), according to which in the Federal Republic of Germany the parents initially maintain their children. The state, on the other hand, only intervenes under Article 6 of the Basic Law (3) if the children are threatened with neglect. In this respect it is by no means forbidden, but rather it is perfectly permissible to be poor; Also, poor people may not be deprived of their children ex officio without serious cause. But whoever finances his or her existence at the expense or from the tax revenue of others has an increased obligation to work. Nor should you put your child at a disadvantage; Parents of underage children are rather obliged according to §1603 BGB to distribute all available funds evenly if the full maintenance claim cannot be paid.

The offense can, however, also be realized if the perpetrator fails to generate income, although this would be reasonable for him, or if his inability to perform is caused by giving up his job, not accepting work or giving gifts to third parties.

Successful act

The breach of maintenance obligation must endanger the beneficiary's vital needs. According to the wording of the law, there is also a risk if others have to assume the perpetrator's obligation. In addition, there is also a risk if the entitled person has to make unreasonable efforts of his own to secure his needs.

The concept of the necessity of life is based on the regular need, not on a mere emergency need. Here again the maintenance owed under family law is used.

Subjective fact

Subjectively, Section 170 of the Criminal Code presupposes at least conditional intent with regard to all characteristics of the objective fact .

The problem here is the question of how it should be assessed if the perpetrator is mistaken about having to pay maintenance at all, because, for example, he is not performing well. While some voices in jurisprudence and literature only want to assume an error in the prohibition , so that criminal liability would nevertheless be possible if the perpetrator could have avoided the occurrence of this error, the prevailing opinion as well as the higher court jurisprudence assume a factual error that the intent with regard to omits the act (§ 16 StGB) and thus leads to the perpetrator being exempt from punishment.

Qualification

Section 170 (2) of the Criminal Code contains a qualification in the event that the person entitled to maintenance is a pregnant woman, the perpetrator withheld her maintenance in a reprehensible manner and thereby causes the pregnancy to be terminated . This paragraph was added in 1995 after the second judgment of the Federal Constitutional Court on the termination of pregnancy in order to grant the unborn life greater protection and to enable a woman to decide on a child free from material constraints.

A maintenance obligation towards the child mother arises for illegitimate fathers at the earliest four months before the birth ( § 1615l BGB). Insofar as a legal termination of pregnancy is carried out before this point in time ( Section 218a of the Criminal Code), there is no criminal liability.

Legal consequences

Criminal law

Fine and imprisonment

The law provides for imprisonment or a fine for the act. In practice, however, the sanctions often appear unsatisfactory. In particular, the imposition of a fine leads to the fact that the funds from which the perpetrator can provide maintenance are cut even further, and the claimant's maintenance claim may be even further endangered. The maintenance obligation amount to be paid in the future is deducted from the calculation of the amount of the fine, but the perpetrator is cut off from paying on the maintenance arrears that have already arisen.

For this reason, in the everyday life of these proceedings, a prison sentence is often imposed even on first-time offenders, which is then suspended on probation . However, this approach is also questionable, in particular because the imposition of short prison sentences , i.e. those of less than six months, is only permitted by the legislature in two exceptional cases, namely if this is essential to affect the offender or to defend the legal system. The law does not provide for the shortage of funds through the fine to guarantee the maintenance, which the law wants to protect, as an exception reason. A corresponding application is prohibited by the prohibition of analogy under criminal law, which is anchored in the Basic Law in Article 103, Paragraph 1 of the Basic Law, without a law, no penalty.

One possible way out is to discontinue the procedure based on the principle of opportunity against the condition ( Section 153a ) of the Code of Criminal Procedure that the perpetrator pays the dependent a certain amount of money every month for one year. Conditions such as paying maintenance to the best of your ability also occur, but are less common as they cause difficulties in verifying whether the condition has been met or not. Conditions in the amount of the expected fine as payment on the maintenance arrears also occur in practice.

A revocation of probation in accordance with Section 56f (1) Sentence 1 No. 3 of the Criminal Code requires the judge to seek as broad a factual basis as possible in order to assess whether and, if so, how the convicted person has violated the probation requirements by not paying maintenance and to make a decision on one comprehensively determined facts.

Driving ban

In order to create an alternative to imprisonment and a sanction for people for whom a fine is not a tangible evil, the coalition agreement of 2013 saw the driving ban be introduced as an independent sanction in adult and juvenile criminal law. Whether this is constitutionally permissible in the event of a breach of the maintenance obligation is controversial.

Since August 24, 2017, a driving ban can be ordered in addition to another penalty for all criminal offenses .

Outside of criminal law

In the event of a breach of the maintenance obligation towards a dependent child up to the age of eighteen, an advance maintenance payment can be made in accordance with the Maintenance Advance Payment Act. The entitlement is limited to the statutory minimum maintenance. As a rule, recourse is taken against the person liable for maintenance ( Section 7 UhVorschG). Apprentices can make advance payments on the training grant according to § 36 BAföG received.

If the person liable for maintenance is entitled to social benefits, for example to a pension from the statutory pension insurance, and if he does not meet his maintenance obligations, the responsible service provider can pay out the cash benefit directly to the dependent spouse, partner or children (so-called diversion, Section 48 SGB I). This is permissible even if the criminal offense of § 170 StGB is not fulfilled. Rather, the decision is at the discretion of the service provider.

The willful violation of the maintenance obligation obliges to pay damages according to Section 823 (2) BGB in conjunction with Section 170 StGB. Insofar as this is not already a liability from a deliberately committed tort , arrears legal maintenance that the debtor has deliberately not granted in breach of duty is not subject to the discharge of residual debt ( § 302 InsO ).

Preliminary investigation

The law enforcement authorities are acc. Section 24c (3) No. 2 KWG authorizes the access to certain account details of a suspect at the Federal Financial Supervisory Authority (BaFin), as well as certain social data from the service providers including the current employer of the person liable for maintenance in accordance with Section 35 SGB ​​I, Section 68 SGB ​​X.

The police crime statistics (PKS) for 2015 show a total of 7 304 cases for breaches of the maintenance obligation according to Section 170 of the Criminal Code. This represents a decrease of 11.3% compared to 2014. The clearance rate was 99.8%.

Austria and Switzerland

In Austria, the violation of the maintenance obligation is punished with imprisonment of up to six months or with a fine of up to 360 daily rates, in serious cases with imprisonment of up to three years.

Art. 217 of the Swiss Criminal Code provides for a custodial sentence of up to three years or a fine for neglecting maintenance obligations.

Web links

Individual evidence

  1. ↑ Brandenburg Higher Regional Court, judgment of October 24, 2012 - (1) 53 Ss 163/12 (79/12)
  2. ↑ BMFSFJ : Maintenance payments for underage children in Germany . Series of publications Volume 228, Stuttgart 2002
  3. ↑ BGHSt 5, 106; OLG Düsseldorf, StV 1991, 68; OLG Hamm, NStZ 2004, 686
  4. ↑ OLG Düsseldorf, StV 1996, 45
  5. ^ LG Dresden, StV 1996, 203
  6. ↑ BGHSt 14, 165, 168
  7. ↑ BVerfGE 88, 203 , 298
  8. ↑ Practice of prosecuting breaches of maintenance obligations within the meaning of Section 170 of the Criminal Code, BT-Drucksache 15/5891 of July 4, 2005
  9. ↑ BVerfG, decision of September 28, 2010 - 2 BvR 1081/10
  10. ↑ Shaping Germany's future. Coalition agreement between the CDU, CSU and SPD, 18th legislative period, p. 146
  11. ↑ Torsten Krauel: Punishment Populism: The nonsensical fantasies of driving license withdrawal Die Welt , August 13, 2016
  12. ↑ BSG May 13, 1987 - AZ: 7 RAr 13/86 and July 28, 1987 - 7 RAr 39/86, SozR 1200 § 48 No. 11 and 12
  13. ↑ DRV : Breach of the maintenance obligation legal work instructions, accessed on August 17, 2016
  14. ↑ BGH, decision of March 3, 2016 - IX ZB 65/14
  15. ↑ Andreas Grundmann: From July 1st, 2014: New Insolvency Law - PART 1 March 2014
  16. ↑ BVerfG, decision of June 13, 2007 - 1 BvR 1550/03 u. a. Margin no. 89 ff., 108 ff.
  17. ↑ Thomas Hochstein: Data storage and data access by investigative authorities, p. 29 f.
  18. ↑ Federal Ministry of the Interior : Police crime statistics 2015 ( Memento of the original from July 6, 2016 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. P. 100, criminal offense code 671000 @1@ 2Template: Webachiv / IABot / www.bmi.bund.de
  19. ↑ Section 198 of the Criminal Code
  20. ↑ Art. 217 of the Swiss Criminal Code
  21. ↑ Federal Supreme Court : BGE 126 IV 131