Reliability (law)

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Reliability is an indeterminate legal concept , which is often in administrative law occurs and a very significant criterion for a natural person required in certain jurisdictions situations characterological is suitability.

General

Reliability is particularly expected of people who apply for a business license, transport passengers , work in safety-relevant areas or have anything to do with weapons . In these and similar situations, the legislature expects that the character trait of reliability must be checked ex officio . In these cases, the relevant laws use the concept of reliability without listing the positive characteristics that can be assigned to it. In the absence of a legal definition , it is left to case law and literature to work out these conceptual features. Often the term is instead defined negatively in laws ( Arms and Federal Hunting Act ), so that it becomes clear when, conversely, reliability does not exist. The concept of unreliability has long had a certain meaning in trade and professional law ( Section 35 (1) GewO ). It is unreliable if, based on the overall impression of their behavior, they cannot guarantee that they will operate their business properly in the future. The commercial law unreliability does not require the trader to be at fault.

Money laundering and aviation

According to the Money Laundering Act , someone who guarantees that he will carefully observe and fully comply with his statutory and contractual obligations at all times is reliable (see Section 1, Paragraph 20 of the GwG). According to § 7 Aviation Security Act , a background check has to be carried out for certain groups of people. Reliable within the meaning of Section 29d LuftVG is only someone who guarantees that they are fully compliant with their obligations to protect against attacks on the safety of air traffic, in particular against aircraft hijacking and acts of sabotage ( Section 29c (1) sentence 1 LuftVG) to meet. In positive terms, reliability includes absolute impunity and if there is no other accusable behavior on the part of a person.

Gun and hunting law

In gun and hunting law, a distinction must be made between the so-called “absolute unreliability” and the so-called “rule unreliability”. If the elements of the rule unreliability are present, it can generally be assumed that the person concerned is unreliable; however, this general presumption can be refuted in individual cases. In the case of absolute unreliability, there is no possibility of refutation; the unreliability is assumed by law. According to Section 5 (1) of the Weapons Act , persons irrefutably do not have the required reliability

  • who have been finally convicted
a) because of a crime or
b) to a prison sentence of at least one year for other intentional criminal offense,
if ten years have not passed since the last conviction became final; or
  • where facts justify the assumption that they
a) weapons or ammunition will be improperly or carelessly used,
b) Do not handle weapons or ammunition carefully or properly or do not store these items carefully,
c) Weapons or ammunition are given to persons who are not authorized to exercise actual control over these objects.

Here, the reliability check precedes the issue of a gun or hunting license or a gun ownership card.

Explosives law

In explosives law, the reliability is regulated in § 8a of the law on explosive substances ( Sprengstoffgesetz ).

Passenger transport

The driver's license to transport passengers ( taxi , rental car , ambulance or bus ) also requires “personal reliability”. The provision of Section 48 (5) sentence 2 3 FeV regulates the personal reliability required specifically for passenger transport, which must be given in addition to driving aptitude. This "personal reliability" refers to a personal characteristic that characterizes the trustworthiness of the person concerned and for the examination of which it is essential to determine whether the person concerned trusts that he will carry out the transport of passengers properly (in particular in compliance with the traffic regulations applicable to all) Prove worthy or not. The people to be transported entrust themselves to the driver, which is why there is a high public interest in ensuring that the driver justifies this trust. The personal reliability required in this respect is to be assessed as an aspect of personality on the basis of all known, meaningful findings in the individual case. A driver's license to transport passengers must therefore not be extended if facts justify the prognosis that the driver poses increased risks for the passengers' legal interests that are worthy of protection compared to a person who behaves in accordance with the norms.

Credit reliability

The reliability of managers or owners of credit institutions is a prerequisite for the granting and maintenance of a banking license according to Section 33 KWG . The banking supervisory authority BaFin checks the reliability of the manager or owner via the federal central register and the central trade register . The unreliability must be relevant to the evidence, i.e. facts must be present from which a personal unreliability arises. There are no positive assessment criteria for personal reliability. Rather, reliability is assumed if negative facts about the person are not known. When checking the reliability, the particularities of the business activities of the institute and the protective purposes of the KWG must be taken into account. Furthermore, the principles of appropriateness and proportionality play a special role in this assessment. According to the justification for the government draft on Section 32 KWG, personal reliability is generally to be denied if the owner or manager has committed property offenses, has violated statutory regulations for the operation of a company or has shown in his private or business conduct that of him solid management cannot be expected. In the commentary on Section 33 KWG there are examples of catalogs showing when unreliability should be given. This includes:

  • Serious, repeated violations of commercial regulations or those in connection with the KWG;
  • Failure to remedy serious deficiencies in bookkeeping and accounting despite multiple complaints in previous audit reports, as well as booking manipulations, etc .;
  • insufficient credit security;
  • Inclination to speculative business;
  • Pathological disorders such as alcoholism, provided that they are serious impairments with serious functional disorders;
  • Property crimes (fraud, embezzlement, embezzlement, etc.), cases of other serious crime, money laundering offenses, etc.

It is obvious that the latter category also includes personal tax misconduct, especially tax offenses that were committed in connection with business activities for the bank.

unreliability

With the exception of gun law, the concept of unreliability is not legally defined. An orientation results from the requirement for the refusal of a trade requiring a license due to unreliability (e.g. § 34d Abs. 2 Nr. 1 GewO for insurance brokers). It is then unreliable who is responsible

  • has been convicted of a crime or
  • Theft, embezzlement, extortion, fraud, embezzlement, falsification of documents, stolen goods, usury or an insolvency offense (fraudulent bankruptcy, violation of accounting obligations, favoring creditors, favoring debtors) has been legally convicted.

Further specific features result from the restaurant permit according to Section 4 (1) GaststättenG . Reasons that indicate unreliability are partially given here. For example, it is unreliable who “is devoted to drinking” or has fear of promoting alcohol abuse , receiving stolen goods or illegal gambling .

Legal consequences of the examination

The authority responsible for checking the reliability will request extracts from the register (federal central and commercial central register). If these sources of evidence give rise to facts from which a personal unreliability can also be inferred in the future, the proof of reliability required by the legislature has not been provided. On the basis of the facts known to it, the authority develops a prognosis as to whether the license holder will pose a risk to the public in the future by exercising the license. In individual cases, this prognosis usually becomes problematic and controversial when the prognosis of unreliability is linked to behavioral errors that are not related to the subject; Thus, from rough driving behavior in road traffic, it is not easy to infer a possible unreliability as a person authorized to blast. Unreliability can at least be affirmed where the typical risks of exercising a permit have occurred several times. The more difficult it is for the owner to intervene because the license is no longer available, the more precise and justified the prognosis of the authority must be.

The fact-based prognosis has the consequence that the license for a trade that requires a license will be refused or revoked, employment in security-relevant areas will not be permitted or terminated, permits under the law on explosives according to Section 7 of the Explosives Act, qualifications or weapons licenses cannot be issued or withdrawn . The administration has no room for judgment or decision-making in the application ( interpretation and subsumption ) of this term to life circumstances. A prohibition notice can be taken before the administrative court by way of an action for avoidance . The courts can therefore fully review the decision of the authority as to whether (un) reliability is present at the relevant point in time for the person concerned and, if necessary, revoke the administrative act that presupposes the (un) reliability .

Personal suitability must be strictly separated from this, because it is linked to physical or mental characteristics.

See also

Web links

Wikisource: Law regarding the amendment of § 32 of the trade regulations. From July 15, 1880. (Germany)  - Sources and full texts

Individual evidence

  1. ↑ BVerwG, judgment of March 9, 1994 , Az. 1 B 33.94, full text
  2. ↑ BVerfGE 24, 38 BVerfGE 24, 38. (No longer available online.) Formerly in the original ; accessed on October 30, 2018 .  ( Page no longer available , search in web archives )@1@ 2Template: Toter Link / www.servat.unibe.ch
  3. ^ Page no longer available , search in web archives: BVerwG, judgment of July 15, 2004 , Az. 3 C 33.03, full text.@1@ 2Template: Toter Link / www.bverwg.de
  4. ↑ Page no longer available , search in web archives: BayVGH, decision of March 6, 2008 (PDF; 67 kB), Az. 11 CE 07.1765, full text.@1@ 2Template: Toter Link / www.landesanwaltschaft.bayern.de
  5. ↑ BVerwG, decision of September 1, 1970 , Az.VII B 60.70, full text.
  6. ^ VG Hamburg, decision of August 18, 2009 , Az. 15 E 1380/09, full text.
  7. ↑ BAFin, banking supervision
  8. ↑ Samm in Beck / Samm / Kokemor, KWG, § 33 Rn. 40.
  9. ↑ BVerwG, judgment of June 27, 1961 , Az.IC 34.60, full text = NJW 1961, 1834 f.
  10. ↑ Samm in Beck / Samm / Kokemor, KWG, Rn. 41
  11. ↑ printed in Beck / Samm / Kokemor, M 2
  12. ↑ Reischauer-Kleinhans, KWG, Rn. 5c; Fischer in Boos / Fischer / Schulte-Mattler, 2nd edition, marginal no. 34 ff .; Samm in Beck / Samm / Kokemor, marg. 47.
  13. ↑ Samm in Beck / Samm / Kokemor, KWG, § 8 Rn. 22b