Evasion (law)

Circumvention of the law (lat. fraus legis ) is a behavior that is in which, although not well but violated the terms of a legal norm against their meaning. The legislature has a certain result, not intentionally, but it is not expressly prohibited.

General

Laws and other standards were interpreted in Roman law according to its wording, a consideration of its meaning and purpose, however, was excluded. Opened the bypass shops great options. At that time they helped with the doctrine of the sham transaction.

When the end of the second half of the 19th century developed an objective interpretation of doctrine, increasingly changed the treatment of evasive transactions. Now, one could deduce the assessment of these transactions from the objective meaning and purpose of the standard. This modern dogmatics also employs the German Civil Code in 1900. Laws aim in this context is still a disciplining of the Parties and write more or less in front of specifically what is allowed and what is prohibited. If legal transactions and acts prohibited by law, the legal consequence circumvention of the law with the legal consequence of the bypassed standard must match. A circumvention of the law, there are only prohibition laws. Prohibition laws are all mandatory and non- contractually -negotiable legal standards by which the carrying out of a ( according to the legal principle possible ) legal transaction with regard to its content, is on a disapproved by the legal success or to the particular circumstances under which it is made, prohibited. A violation of a prohibition law is also to be assumed if it is to be bypassed. With an evading try the Parties - who actually want an offense prohibited by law - to bring about the same economic result by a non- covered by the wording of the Act offense.

Demarcation

For all legal norms initially raises the question of whether and to what extent they are " capable of avoidance " or must meet certain form and content requirements in order to prevent them to a circumvention. Those who handle the law would, as a rule avoid its legal consequences. For this purpose he uses design options that lead to a circumvention agreement or evading. An impermissible circumvention of the law is when abuse of the law circumvented by an objective bypass action a mandatory legal rule or brought to the application or a norm of free space is created. The prohibition of bypass operations is a long time generally accepted principle of law. A circumvention of the law is according to the jurisprudence of the Federal Court before then, if the design of a transaction objectively has the purpose of preventing the entry of a legal consequence, which the law provides for such transactions; circumvention intent is not required.

If, however, only the text of a law circumvented, but kept its legislative purpose, there is a permissible legislative avoidance. It is the opposite circumvention of the law. A legislative avoidance has no legal consequences, so that based on laws avoidance transactions are legally binding and enforceable.

Legal consequences

A circumvention of the law can not have any legal consequences if they do not at the same time constitutes a violation of the law. More precisely, there is a circumvention of the law, if indeed the scope of a standard does not apply, but will violate the standard target. If, therefore, does not violate the terms of a standard, it must be asked by the design, which objective is to be pursued with this standard. Meaning and purpose of a rule is the value detected by their area of ​​life that can be determined by interpretation.

Legal consequences occur only when a law violation. The legislature has set aside and therefore the nullity of transactions provided that violate a ban on business the possibility of circumventing the law. Meets the standard evading the purpose of a rule, attacks the Prohibition Act, with the consequence of the nullity of the bypass business under § 134 BGB. The law also does not condone the circumvention of consumer protection regulations. Thus, in § 312i BGB is provided even then apply the consumer protection when circumvention by " other arrangements " exists. In the case of § 475 paragraph 1 sentence 2 BGB is to assume a bypass if the selected design serves to exclude or limit the application of the aimed consumer protection. It is to special provisions for specific types of legal transactions in which consumer protection can not be bypassed. As a possible workaround is to pull even with less concrete stringent statutory provisions into consideration, one distinguishes different types of prohibition laws.

Species

A distinction is made with regard to the uniqueness of the general prohibitions established by special legislation of the prohibition of circumvention.

General prohibition of circumvention

A general prohibition of circumvention is when the purpose of a statute is thwarted by other legal design options. In general prohibition on the purpose of a statute by interpretation must be determined. If a transaction is neither a sham transaction is still present special legal circumvention prohibitions, the general prohibition of circumvention applies. A - illegal - circumventing the law exists when the purpose of a binding legal norm is thwarted by the fact that other legal structuring options misused.

Special Statutory prohibition of circumvention

In a special statutory prohibition of circumvention of the legislative will is expressly declared to enforce mandatory rules. Special Legal prohibitions are in particular § § 306a, § 312i, § 475 paragraph 1 sentence 2, § 506 or § 655E BGB. These rules are as concrete tailored to a given situation, that an interpretation in individual cases is not required. Requirement is also here that prohibition laws should be binding and are not dispensable.

Other types

True and false evasion of the law (linked fraudulently ) occur with the application of private international law in the context. In the spurious circumvention of the law, only the wording of the question norm, but not bypassed her mind. To connect the engaged couple a marriage abroad to circumvent bans marriage of German or foreign law. " Marriage paradises " are thus typical examples of a fake circumvention of the law. In a true bypass, however, the citizenship must be changed, the habitual residence or a legally improper choice of law to be made or changed the location of a contract. A typical example of a true bypass was abolished in Austria in January 2011 loan agreement fee ( " tax credit " ), a tax that was levied upon conclusion of a credit agreement. Shifted to the Place of purchase to Germany, the tax credit was not refundable. Here, the " Umgeher " must therefore also to the legally envisaged facts " meander ". In German Private International Law at a general system of circumvention of the law is lacking.

If both parties have consciously worked to avoid an unwanted piece of legislation, there is a two-sided bypass. However, if only one of several parties contributed to the circumvention of the law, there is a one-sided bypass.

Avoidance of foreign law

Justus Wilhelm Hedemann wrote in 1950 that are not expressly regulated in the Civil Code security assignment " read out on a bold idea detour from the law " and " a perfect example of circumvention of the law " is. Even the Supreme Court had in 1880 its admissibility in the affirmative, because their right success is actually wanted and confirmed this later on November 8, 1904 after the entry into force of the Civil Code. The jurisprudence of the Supreme Court is based on the legal effect of the transfer of ownership in Germany. In Switzerland and Austria, however, the collateral assignment is still regarded as impermissible circumvention of the lien. In Switzerland and Austria, the circumvention doctrine differs otherwise not significantly different from the German. In Switzerland, there is widespread agree that circumvention of the law a sub-case of abuse of rights is, which is regulated in Article 2, Paragraph 2 of the Civil Code. Located in France circumvention of the law ( " fraude à la loi " ) only present if three conditions are met. In common law, the circumvention of the law ( "evasion " ) in the application of law is completely unknown.

Evasion in tax law

One focus has the circumvention of the law in tax law, where § 42 AO makes it clear that the tax law at the abuse of civil design options can not be bypassed. However, this is not a circumvention of the law in the strict sense. If that is not subject to tax a certain process, there is legal tax avoidance. However, there is a tax liability, they can not handle, but the parties could possibly disguise the existence of the taxation requirements; However, this is criminal tax fraud, but no workaround.