Contravention

A misdemeanor in Germany is a minor violation of the rules of law.

Under German law, a misdemeanor is a transgression of the law (exactly illegal and vorwerfbare act), for which the law provides for a fine as punishment ( § 1 para 1 of the "Law on Administrative Offences " Administrative Offences Act ). Some breaches of the Highway Code may be imposed in addition to the fine, a driving ban of three months.

The modern legislature looks at light violations as sufficient not to react with the means of punishment, but only with fines. This applies mainly for mild cases of risk or impairment of legal rights of other persons (eg breaches of the Highway Code ), but also in cases of disobedience to regulations ( eg violation of mandatory reporting ).

Relation to the criminal law

General: right Systematically the misdemeanor cases belongs to the administrative law, even if his powerful criminal roots are clearly visible. The legal-historical distinction between criminal criminal law, criminal law and police disciplinary criminal law reveals the common basic idea of ​​legal sanctioning misconduct, but blurs the fundamental right systematic differences that were most clearly seen in modern jurisprudence. If today is spoken of criminal law (in the narrow sense), only the criminal criminal law is meant, which divides into the core criminal law contained in the Criminal Code and the scattered in specialized penal laws of the so-called Nebenstrafrechts. In the modern disciplinary law is the law of the Professional Code of state servants. Unlike in the past disciplinary criminal ahndungswürdige disciplinary offenses and criminal offenses office (eg, § § 331 ff StGB) are clearly distinguished. The earlier so-called police criminal is understood today as an administrative injustice and finds himself in misdemeanor cases again. Nevertheless, the federal government has called for the creation of the order adversity law with the approval of the Federal Constitutional Court on the concurrent legislative competence in criminal (Article 74 Paragraph 1 No. 1 of the Basic Law ). The misdemeanor cases is also often referred to as the little brother of the criminal law. The offense is the criminal law a replica, but differs from it in significant points. In particular, the fine is not a " punishment " for those appointed to the prosecution and punishment of offenses administrative authorities ( § 35 Administrative Offences Act ) may impose penalties; the imposition of criminal penalties is expected to the core of judicial activity that is subject to the judge (Art. 92 GG). There are also in misdemeanor cases other than criminal law no participation ( instigation or aid ), but all are accomplices in accordance with § 14 sub-section 1 as "perpetrators" treated (so-called unit perpetrators ). The legal consequences of a traffic offense are significantly different from the legal consequences of a traffic offense. Against those who commits a traffic offense, a penalty is imposed. However, in contrast to the crimes the offenses lack the ethical worthlessness, so the moral culpability, although is a fault which, after all, the legislature punished by a fine or ban about to show the person concerned his misconduct. If the fine can not be collected, it is in principle possible to arrange Erzwingungshaft. For a single fine six weeks Erzwingungshaft are allowed for several in a decision summarized fines not exceeding three months. The flexor Erzwingungshaft is a means to overcome the lack of payment will. It is like the replacement obsessive in administrative enforcement law, which replaces the penalty payment and flexor means at its uncollectible, and differs substantially from the custodial sanction in criminal law ( § 43 StGB); it does not diminish the amount of the fine to be paid. Compared to not only temporarily insolvent sufferers who are no longer creditworthy, the Erzwingungshaft may not be ordered. In road traffic offenses the opportunity principle applies. This means that the prosecution at the due discretion of the administrative authority is. For minor traffic offenses can only cautioned and an amount of € 5 will be charged to 35 €. If a warning does not come because of the severity of the traffic offense into consideration, but a fine is imposed, in addition also a driving ban of between one and three months can be arranged. This, however, only if the duties of a motor vehicle driver have been injured or grossly persistently or an alcohol - or drug driving is given. In order to ensure uniform as possible punishment a uniform nationwide Bußgeldkatalog has been built for road traffic offenses. The catalog of fines is not based on the economic situation of the person concerned and is therefore only a guide for the courts dar. These always have to evaluate the specific case.

Application of law: Is an act simultaneously offense and offense, the criminal law precedence (§ 21 Administrative Offences Act ) has. If the court has adjudicated on the act as a crime, it may not be the same offense be proceeded against as a misdemeanor ( § 84 sub-section 1 ). The final court judgment on the deed as a misdemeanor (not the penalty notice; see a § 86 Administrative Offences Act ) is their persecution as a crime against ( ne bis in idem, § 84 sub-section 2 ), but here comes where appropriate disadvantage a resumption of the person concerned into consideration ( § 85 para 3 OWiG in conjunction with § 362 Code of Criminal Procedure ).

With the administrative enforcement

Legislative: Following a decision of the Legal Committee of the Federal Council the means of misdemeanor law should only be used for such legal duties as a sanction, from its settlement of delayed or incomplete would result in significant disadvantages for important community interests. Only in these cases, fine standards should be created. In addition, sufficient enforcement agents with the administrative coercion.

Application of law: administrative enforcement, besides a fine ( or punishment ) can be applied ( see § 13 para 6 APA ).

Structure of the statutory scheme

What actions are contrary to regulations, only arises in part from the " Code of Administrative Offences " ( Administrative Offences Act ). The vast majority of offenses are governed by special laws on certain areas of life ( the so-called Nebenstrafrecht ).

By far the most important group of offenses resulting from the Road Traffic Regulations ( Highway Code ). But numerous other laws provide for the punishment of violations as a misdemeanor. Thus the import of certain goods, for example, without monitoring document an offense pursuant to § 33 of the Foreign Trade Act. An increasing gain importance in practice the numerous fine facts contained in the Youth Media Protection State Treaty and the Broadcasting Treaty.

From the Administrative Offences Act, the basic features of the misdemeanor law, ie the rules that apply to all offenses arising. In addition to rules of procedure do, rules and regulations

• Via the analog application of laws ( such as prohibition analogy in criminal law, " nulla poena sine lege ")
• About the temporal and spatial scope of the German administrative offense law
• About the exceptionally punishment for omission (only with a legal duty to act ),
• About the forms of debt ( intent and negligence)
• (which may exclude a punishment ) over error ( right )
• On the Punishment of the experiment,
• On the participation ( which is contrary to the criminal law does not distinguish between aiding and abetting ), § 14 Administrative Offences Act,
• On possible justifications such as self-defense,
• About the competitions, so about treatment of multiple temporally related facts ( coincidence and Tatmehrheit ).

Method

Also, the process - from initial suspicions about the judicial or administrative decision taken to execute - is governed by the Administrative Offences Act. The schemes differ in part significantly from the criminal procedure law, in particular the Code of Criminal Procedure:

So applies to the prosecution of criminal offenses in principle the principle of legality ( offenses must be followed ); however, applies in misdemeanor cases the principle of opportunity: the pursuit is at the discretion of the Authority. Occasion can be a misdemeanor display that anyone can report to the competent authority or the police.

For minor offenses, the suspect may be warned; this may be a warning of money can be raised ( slightly are misdemeanors for which the fines would amount to 35 € ). A offered by the Authority warning money will only be effective if it is accepted, by payment within the designated time limit of one week on a regular basis ( § 56 sub-section 2 ).

Only if an offense is coincident with a criminal offense, the prosecution is responsible ( § 40 Administrative Offences Act ). Otherwise, for the prosecution of offenses not the prosecutor in charge, but the " administrative authority " (§ 35 Administrative Offences Act ), in some places in the law called " persecution authority ". Which authority is specifically determined either from a particular statutory provision or of § 36 OWiG. Usually it is the body responsible for the affected subject area planning authority. If the competent authority can not act objectively (eg, on weekends), or if there is no special authority ( for example, for road traffic ), then the police are responsible. The responsibility of the managing authority ends and the process is continued by the prosecution if the suspect against a fine imposed an opposition procedure (see below ), ie it must be decided on the initiation of legal proceedings.

Unless the Administrative Offences Act does not contain specific provisions, the provisions of the Code of Criminal Procedure ( CCP) (so-called transformation rule, § 46 Administrative Offences Act ) shall apply mutatis mutandis; while the prosecution authority has the same rights and obligations as the prosecutor in the prosecution of criminal offenses. In the penalty proceedings so searches or seizures are possible. Excluded, however, are arrests, detentions and compulsory admissions.

Even the police in the prosecution of offenses the same rights and obligations as in the prosecution of criminal offenses, unless the Administrative Offences Act contains no special rule ( § 53 Administrative Offences Act ). However Sweeping encroachments on fundamental rights can only be ordered by police officers, the determination person of the prosecution (§ 53 sub-section 2 ).

A person against whom a fine process is operated is called " data subject".

Penalty notice

If the matter is not dismissed, and if no ( effective ) a warning is present ( eg because the caution money was not paid on time ), the administrative authority shall issue a penalty notice. A penalty notice is contrary to the warning associated with additional costs (fees and expenses). Only after notification of the penalty notice have any party (eg, the injured party) a right of access to documents.

Once the penalty notice is final, it can be enforced. Unlike fines in criminal law, however, can not be converted into imprisonment fines. For the recovery of the fine, the competent court may order pursuant to § 96 OWiG Erzwingungshaft.

Law shall take effect automatically when the appeal period elapses without an effective remedy will be charged. The form of appeal against a penalty notice is called opposition. The opposition period is two weeks ( § 67 sub-section 1 ), that is, the objection is only effective when it is filed within two weeks of notification of the penalty notice.

Method according to any objection

In the notice of opposition, the administrative authority may withdraw the penalty notice. Otherwise, it initiates the process continues to the prosecutor, the matter before the district court for a decision. The court set a date for trial, in which the matter is clarified by evidence and rated legally. Unlike in criminal proceedings, the prosecution must not attend the hearing.

If a person fails to appear at the court hearing, his appeal is rejected and the penalty notice becomes final (ie non-appealable ), except the person was released from his obligation to appear in person or, exceptionally, through no fault of Appointment.

Under certain conditions, can be called as the next instance against the decision of the District Court with the appeal the Court of Appeal. If the Court of Appeal considers this to preserve the uniformity of case law for offer, may even be called the Federal Court.

Repeated offenses

Some sanction standards in German criminal law qualify the persistent or repeated commission of a misdemeanor criminal offense. Examples are:

• Persistent violations in the travel industry ( misdemeanor pursuant to § 144 Paragraph 1, § 145, Section 1, Section 2 No. 2 or 6 or § 146, Section 1, § 148 Commercial Code),
• Persistent violations of the spatial restriction of stay of asylum seekers ( offense according to § 56 Paragraph 1 or 2, in each case also in conjunction with § 71a para 3, § 85 No. 2 Asylum Procedure Act ).
• Persistent pursuit of the banned prostitution ( misdemeanor pursuant to § 184e of the Penal Code, in contrast to the forbidden practice of prostitution as a misdemeanor under § 120 Administrative Offences Act )

Furthermore, the principle also applies to offenses that a repeat event is sanctioned stricter. For example, distinguishes the fine catalog, which contains guidelines for the prosecution of traffic violations, specifically between first and repeat offenders.

Compared to other countries

Austria

In Austria there is analogous to the German misdemeanor cases an administrative criminal law, by the Administrative Penalties Act 1991 ( WTL, general administrative criminal law, procedural law ), the General Administrative Procedure Act 1991 ( AVG; procedural law; see § 24 para 2 WTL ) and numerous offenses in various individual laws regulated is.

Accordingly, corresponds in Austria, the term administrative violation of the German offense, and a penal order (administrative penalty order ) corresponds to the German penalty notice. Against a penal complaint to the competent administrative court is permitted.

Switzerland

In Switzerland, the Federal Act on Administrative Criminal Law Template: § § / Maintenance / ch of 22 March 1974.

In military law, the concept of offense is not common. But largely content it corresponds that of the so-called light Falls, which draws a disciplinary penalty.