Compensation

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Compensation is a legal term that in civil law the compensation of the value of a no longer available to the injured thing or service or in criminal law which the perpetrator ex officio retracted concerns stuff.

General

The compound value substitute states that someone has to replace the value of an object because he cannot surrender the object himself (anymore) because he has used it or has it in some other way. The value replacement is possible by paying in cash. The obligation to pay compensation results from the law in several areas of law , especially in civil and criminal law.

civil right

Compensation for value occurs in civil law when reversing mutual contracts in the context of service disruptions. It has become a party to the contract the resignation reserved or you have a statutory right of withdrawal to, so the resignation is received in the case of services to be returned and the drawn uses according to § 346 para. 2 BGB issue . According to Section 346 (2) of the German Civil Code (BGB), the debtor must pay compensation if he cannot (no longer) return the service himself. This is the case if the debtor receives the services received for consideration sold or it consumes has ( § 818 para. 2 BGB). The obligation to pay compensation according to § 346 Paragraph 2 BGB takes the place of the obligation to return goods according to § 346 Paragraph 1 BGB (“instead of”). The obligation to pay compensation applicable under § 346 para. 3 BGB if the entitling to withdrawal defect only during the processing has been or transformation of the object, the creditor for the deterioration or destruction to represent has or the damage would have occurred in his hands or if, in the case of a statutory right of withdrawal, deterioration or destruction has occurred for the beneficiary, although the latter has observed the care that he is used to in his own affairs.

Even if a consumer contract is revoked, the consumer must pay compensation for the value of goods in accordance with Section 357 (7) of the German Civil Code (BGB) if the loss in value is due to handling of the goods that was not necessary to check the quality, properties and functionality of the goods the entrepreneur has informed the consumer about his right of withdrawal in accordance with Art. 246a § 1 Paragraph 2 Clause 1 No. 1 EGBGB . In November 2010, the Federal Court of Justice (BGH) determined in the so-called "water bed case" that the construction of a water bed and the filling of the mattress was to be regarded as an examination of the matter which is not subject to compensation. Since a bed is regularly a long-term purchase that is not insignificant for one's own well-being, even three days of use should still be considered an appropriate assessment.

In the case of construction work that can no longer be separated (for example, the windows built into a building as essential components ), the work would be destroyed or unusable during dismantling , so that restitution according to "the nature of what has been achieved" is excluded. In these cases the client has to pay compensation.

If the creditor wants to claim compensation, he must set the debtor a deadline and then proceed in accordance with §§ 346 Paragraph 4 BGB, § 280 Paragraph 1 and 3 BGB and § 281 Paragraph 1 BGB.

Criminal law

If the confiscation of an object is not possible in criminal proceedings because the perpetrator or participant has previously utilized , sold or consumed or otherwise thwarted it, the court can order the confiscation of the corresponding amount of money as compensation. The confiscation of the compensation is a measure similar to a punishment, which can be recognized as a secondary punishment if the primarily required confiscation is no longer possible.

The legal basis for the confiscation of objects belonging to the perpetrator or participant is Section 73a (1) of the Criminal Code . However, if the confiscation of an object is not possible due to the nature of what has been obtained or for any other reason, the court will order the confiscation of an amount of money corresponding to the value of what has been obtained in accordance with Section 73c of the Criminal Code. With the value replacement, a complete preventive profit skimming is to be ensured.

Other areas of law

In criminal tax law , goods for which consumption taxes have been evaded can be confiscated in accordance with Section 375 (2) sentence 1 no. 1 AO ; § 74a StGB applies. Section 375, Paragraph 2, Sentence 1, No. 1 of the AO orders the possibility of confiscating products subject to excise duty as a side effect of tax evasion , which relates to the evasion of excise taxes.

In fine proceedings, there is the parallel provision of Section 22 (1) OWiG , according to which objects may be confiscated that belong or are due to the perpetrator at the time of the decision or the objects endanger the general public due to their type and circumstances or there is a risk that they will be inspected will serve by acts which are punishable by a penalty or a fine. The value replacement results from § 25 Abs. 1 OWiG.

literature

Individual evidence

  1. ^ Harm Peter Westermann / Peter Bydlinski, BGB law of obligations, general part , 2007, p. 189
  2. ^ BGH, judgment of November 3, 2010, Az .: VIII ZR 337/09 = BGHZ 187, 268
  3. ↑ Wolfgang Voit, The changes to the general part of the law of obligations by the law of obligations modernization law and their effects on the law of contracts for work , in: BauR 2002, 154
  4. ↑ Thomas Ax / Daniel Heiduk, claims for defects according to VOB and BGB , 2004, p. 96
  5. ↑ Carl Creifelds , Creifelds Legal Dictionary , 2000, p. 1564
  6. ↑ BGH, decision of 23 August 2016, Az .: 1 StR 204/16 = NStZ 2017, 361