Fine

The penalty payment is a regulatory instrument for the compulsory judicial or official enforcement of behavioral obligations that the obliged person can fulfill himself (including so-called unjustifiable acts). It is a preventive measure aimed at the future, but it is neither punitive nor fined and therefore does not require any fault .

General

The fine is used to force the addressee to behave in a certain way by bending his will . The minimum and maximum amount of the penalty payment is stipulated in the respective laws ( up to 25,000 euros in accordance with Section 11 (3) of the Administrative Enforcement Act ).

In the event that the penalty can not be recovered, the imposition is mostly of spare obsessive provided. In special cases, e.g. B. If a penalty payment appears hopeless from the outset, immediate imprisonment is usually an option.

If the addressee complies with the requested behavior, there is no obligation to pay. If the duty of conduct can also be fulfilled by a third party, a possible way of enforcement is, in addition to the penalty payment, the substitute performance .

Penalty payment in private law proceedings

Foreclosure to obtain acts

A debtor can be stopped to perform an act that depends only on his will and cannot be carried out by a third party by means of a penalty payment ( Section 888 ZPO ). Such an unjustifiable act can, for example, be the provision of information.

The individual fine may not exceed € 25,000. It will not be threatened before and at the request of the creditor by the trial court of first instance by decision set. The order is an enforcement order with which the obligee can collect the penalty payment in favor of the state treasury in accordance with the regulations on enforcement of monetary claims.

Voluntary jurisdiction

In matters of voluntary jurisdiction , someone who is obliged by a court order to perform an act that is only dependent on his will or to tolerate or refrain from an act can be ordered by the court to comply with his order by means of a penalty payment ( Section 35 FamFG ).

The fine must be threatened beforehand and must not exceed € 25,000. Its recovery is ex officio .

By setting a penalty payment, for example, it can be worked to ensure that

a care directive is delivered

an application is made to the commercial register or documents are submitted ( § 14 HGB )

a merchant uses correct business letters ( Section 37a HGB)

Management board members of stock corporations or registered cooperatives fulfill their legal obligations ( § 407 AktG , § 160 GenG )

Members of the board of directors and liquidators of a registered association perform certain tasks ( Section 78 BGB )

a guardianship is assumed ( § 1788 BGB)

a guardian or counter- guardian follows the orders of the Guardianship Court ( § 1837 BGB)

a will is delivered

Penalty payment in administrative law

In administrative law , the fine is one of several possible measures of administrative coercion to force an act , toleration or omission . The threat , determination and collection of the penalty payment are administrative acts. The legal basis for issuing an administrative act can be found in general administrative law ( federal or state administrative procedural laws). The special regulations on the fine itself (procedure, amount) are reserved for special administrative law (e.g. police laws of the federal states - § 47 SPolG, § 53 PolG NW - administrative enforcement laws of the federal or the states - § 11 VwVG, § 20 SVwVG, § 60 VwVG NW). The extended procedure (threat - assessment - recovery) usually applies to the penalty payment. With the threat and the stipulation, a reasonable period for payment of the penalty payment or the execution of the action is to be granted and the amount to be specified (same amount in both orders). The stretched procedure can be repeated until it is successful. If the person liable is insolvent and thus the penalty payment is irrecoverable, an administrative court can order alternative compulsory detention .

In the immediate execution, threats and stipulations are dispensable. Immediate execution is used in cases in which the lengthy procedure to avert danger takes too much time due to its duration. The main area of application of the immediate execution lies with the regulatory authorities and the police authorities.

Penalty payment in tax law

In tax law , the fine is one of several possible means of coercion to force an action, tolerance or omission. The legal basis can be found in § § 329 ff. Tax Code . The threat, determination and enforcement of the penalty payment is carried out by administrative acts. The individual fine may not exceed € 25,000. The penalty payment must be threatened in writing. The threat may only exceptionally be made in a different manner (e.g. verbally) if there is a risk that the enforcement of the administrative act will otherwise be thwarted. With the threat, a reasonable deadline for paying the penalty payment or for taking the action is to be determined. If the deadline passes without result, the penalty payment is set and enforced. The penalty payment procedure can be repeated until it leads to the desired result. If the penalty payment is irrecoverable, the local court can order replacement compulsory detention at the request of the authority if this was indicated in the threat.

See also: direct force , coercion , administrative penalty .