266a StGB and the end of the statute of limitations
Up to 40 years and 11 months after (still) h.M. last until acts under statute of limitations according to § 266a paragraph 1, paragraph 2 No. 2 of the Criminal Code. There is even talk of “factual limitation of time” and an “imbalance in the limitation system”. In fact, this phenomenon is a special criminal law, against which a view in legal literature has been directed in the past. Finally, the weighty arguments now reach case law. In a well-founded and impressive decision, the LG Baden Baden (Az .: 6 Ns 305 Js 5919/16) had initially opposed the h.M. and the case law of the BGH. This is now followed by the 1st criminal division of the BGH (file number: 1 StR 58/19) and has given up its previous case law and criticized the obvious maladministration in its order for reference.
I. The problem
The limitation period under criminal law begins in accordance with Section 78a sentence 1 of the Criminal Code as soon as the act has ended. This does not mean the realization of the individual characteristics of a criminal offense, but the underlying behavior that fulfills the offense’s offense. Therefore, the completion, i.e. the point in time at which all the criteria are met and the termination of the underlying behavior falls apart.
The jurisprudence regarding the termination within the scope of withholding social security contributions has hitherto assumed that, even after the due date for the payment of the social security contributions has passed, the perpetrator’s obligation to act to pay the contributions continues. The deed could then only end when the social security contribution obligation, e.g. also expired due to the limitation period of the payment claim. According to § 25 Para. 1 SGB IV, this takes 30 years for deliberately withheld contributions, starting at the end of the calendar year in which the contributions became due – i.e. in extreme cases 30 years and 11 months. The criminal statute of limitations therefore begins only after this period has expired.
For the withholding of social security contributions, the law provides in § 78 Paragraph 3 No. 4 of the Criminal Code that (criminal) limitation expires after five years, starting with the termination of the act (see above). If measures to interrupt the statute of limitations are added in accordance with Section 78c of the Criminal Code, the statute of limitations may also expire after 10 years. The maximum limitation period (30 years 11 months + 10 years) is 40 years and 11 months.
II. The duty to act as the core of the problem
Both the Baden Baden District Court and the 1st BG Senate of the BGH believe that if the due date expires without result, the obligation to act in the criminal law sense ceases to apply, because the legal property protected here, namely the premium income from social security, does not require such. According to this view, which must be endorsed, the statute of limitations begins as soon as the due date has passed, without paying the full contributions.
This is particularly unreservedly acceptable, since a criminally relevant obligation to act arises from the legal goods of the violated penal norm and not only from the “prohibition” (according to the formulation of the Baden Baden Regional Court) itself. Only if the specific dangers against which the violated penal norm is directed still exist after the deed has been completed can an obligation to act exist beyond the time of completion. However, the social insurance institutions have already suffered financial loss when the contributions have not been paid at the due date.
Further dangers for the premium income of the social insurance institutions are therefore ruled out logically, because the financial loss has already occurred and thus further damage from the same action is excluded. As a result, damage that has already occurred cannot be used again to justify a future danger.
For the same reason, the continuing claim of the social security institution to transfer the contributions does not constitute a criminal obligation to act, because this (also from a criminal law perspective) is only a matter of redressing the damage that has already occurred.
The offender’s obligation to act under criminal law ceases to apply once the due date has passed. This means that the act ends on the due date.
This view, which is now for the first time represented in the highest judicial jurisprudence, leads to a welcome taming of the “unbalance in the statute of limitations” and has very considerable practical effects, since the statute of limitations occurs at the latest after 10 years and not only after 40 years since the due date.
It remains to be seen how the Senate’s request will be decided and whether the other criminal senates of the Federal Court of Justice will agree with this preferred view.
Hamburg, January 23, 2020