Attribution

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Accountability (also write , lat. Imputatio ) means that one makes a person for a certain behavior and its consequences legally responsible. The person then meets the legal consequences that the legal system attaches to the behavior in question.

In German criminal law and tort law , attribution is closely related to the term causality . The basis is the prevailing concept of the German legal system of free will and freedom of action , which makes it possible to hold people responsible for their actions and the resulting consequences. The Neuro jurisprudence makes this relationship in question.

Criminal law

A distinction must be made between the attribution of an act ( imputatio facti ) and the attribution of guilt ( imputatio iuris ). Accordingly, actions that are committed in a state of incapacity are not included ( Section 20 of the Criminal Code).

However, if the person culpably brought about the state of incapacity, this does not exclude imputation, for example according to the rules on the actio libera in causa . The same applies to the reproachable failure to act ( omissio libera in causa ).

Special cases of direct attribution are indirect perpetration and complicity ( Section 25 StGB), which do not exclude attribution and thus punishment as a perpetrator, although other people are also involved in the occurrence of a relevant success. It is crucial that both the indirect perpetrator and the accomplice have (helped) set the primary cause relevant to the realization of the success.

Incitement ( § 26 StGB) and aiding and abetting ( § 27 StGB) are forms of indirect attribution, since the respective contributions to the crime occur before the last, directly causal act of the perpetrator. However, instigators and assistants take part in the realization of the crime in their own roles by requesting or supporting the perpetrator.

The doctrine of objective attribution examines whether in individual cases a legally disapproved danger created by the perpetrator has resulted in actual success.

civil right

Legal business theory

Permanent legal incapacity excludes the submission (attribution) of effective declarations of intent ( § 104 No. 2, § 105 BGB), since incapable of legal capacity are not free to form and act will.

The purpose of representation , however, is to attribute declarations of intent by the representative to the person represented in order to expand one's own business circle ( Section 164 (1) sentence 1 BGB). The commercial agent has a similar function . The actions of messengers and organs are also included .

Liability law

The attribution of third party misconduct regulates in particular § 31 and § 89 BGB (directors' liability of legal persons ), § 278 BGB (liability for vicarious agents ) and § 831 BGB (liability for vicarious agents ).

In insurance law, case law also attributes the behavior of the so-called representative to the policyholder.

Public liability

The personal liability of the official in the event of a breach of an official duty according to § 839 BGB is acc. Art. 34 GG attributed to the state. In a liability process, therefore, it is not the official but the liable corporation that is passively legitimized .

international law

States are only responsible under international law for their own behavior . Actions by private individuals are not attributable to a state as its own behavior.

So far there has only been a draft contractual regulation on the responsibility of states for the illegal actions of their legislative, executive and judicial bodies, drawn up by the International Law Commission (ILC). The principles laid down therein are, however, recognized as customary international law.

Accounting and tax law

When allocating assets, an economic approach dominates ( Section 246 (1) sentence 2 HGB , Section 39 AO ). Whether an underlying legal transaction under civil law is effective is for taxation in accordance with § 41 AO is irrelevant.

See also

literature

Web links

Individual evidence

  1. ^ Jan C. Joerden : Attribution of the Encyclopedia to the Philosophy of Law, April 7, 2011
  2. ↑ Frank J. Bernardi: Distribution law: attribution of violations of the commercial agent December 2, 2015
  3. ↑ Attribution of acts of third parties. Representative, messenger and organ of a legal person in civil law Schmalkalden University , June 3, 2013
  4. ^ Helmut Rüßmann : Statutory Obligations, Non-Contractual Liability Law 1994/95
  5. ↑ Marco Wicklein: Difference between § 278 BGB and § 831 BGB
  6. ^ BGH, judgment of March 14, 2007 - IV ZR 102/03
  7. ↑ Manfred Hering: Representative liability in comprehensive insurance road traffic law (SVR) 2012, pp. 201–204
  8. ↑ Bernd Rohlfing: Official Liability Universitätsverlag Göttingen 2015, p. 42/43
  9. ↑ Joachim Wolf: Attribution issues in actions of private persons ZaöRV 1985, p. 232–264
  10. ↑ Draft article for The Responsibility of States for International Law Violations 2001
  11. ^ Rainer Hofmann : International Law II - The Law of State Responsibility University of Frankfurt am Main 2012
  12. ↑ Felice-Alfredo Avella: BilMoG compact - with working aids online . Haufe 2013. ISBN 978-3-648-03228-2 . Reading sample: Accounting and valuation principles
  13. ↑ Karsten Lorenz: The attribution of assets May 23, 2001
  14. ↑ Allocation of shares in the case of a formally ineffective trustee agreement with the BGH, decision of 6 September 2012 - 1 StR 140/12
  15. ↑ BFH decision of February 22, 2001 (II B 39/00) BStBl. 2001 II p. 476
  16. ^ BFH judgment of October 6, 2009, IX R 14/08; SIS 10 05 38