Concept and Meaning of the Daily Rate
The Concept Daily rate plays a significant role in German law, especially in criminal and civil law. The daily rate serves as a basis for calculating certain penalties and compensations and contributes to the individualization of legal consequences. The application of the daily rate ensures that legal sanctions or claims within similar circumstances can be adjusted to the financial capacity of each individual.
Daily Rate in Criminal Law
Daily Rate and Monetary Penalties
In criminal law, the daily rate is the fundamental unit of calculation for monetary penalties. This system is regulated in Section 40 of the German Criminal Code (StGB). The fine is imposed in daily rates, whereby their number is determined by the gravity of the guilt and their amount by the financial circumstances of the offender.
Number of Daily Rates
The number of daily rates that a court may determine ranges from at least five to a maximum of 360 daily rates (Section 40 (1) StGB). In exceptional cases, in total sentence formation, up to 720 daily rates can be imposed.
Amount of the Daily Rate
The amount of a single daily rate is based on the personal and financial situation of the person concerned. The daily rate is at least 1 and a maximum of 30,000 euros (Section 40 (2) StGB). Usually, the net income that the accused has at their disposal per day on average forms the basis for determining the daily rate. Special circumstances such as maintenance obligations or extraordinary expenses are also taken into account.
Regulation in Case of Inability to Pay
If a person is unable to pay the fine, Section 43 StGB allows for the imposition of substitute imprisonment. As a rule, one day of imprisonment corresponds to one daily rate of the monetary penalty.
Purpose and Objective of the Daily Rate Regulation
The daily rate system aims to create an equal financial burden, ensuring that everyone is burdened in accordance with their financial capacity. This is intended to ensure that monetary penalties exert the same deterrent effect on people with differing income levels.
Daily Rate in Civil Law
Relevance in Compensation and Employment Law
In civil law, the daily rate may be relevant especially for determining loss of earnings damages, for example in the case of injuries, or for regulating compensation in employment situations. The daily rate is usually calculated on the basis of the average daily earnings generated by an employee or self-employed person.
Calculation of the Daily Rate in Case of Loss of Earnings
To determine the daily rate, the net annual income is typically divided by the number of working days per year (usually 220 to 260 days). On this basis, the financial loss per missed day is determined.
Daily Rate in Social Law
Daily Rate in Social Benefits
In social law, the daily rate is used, for example, when calculating daily benefits such as sickness benefit, transitional allowance, or accident victims’ compensation. Here, too, the average daily income of an insured person is usually used to calculate the amount.
Tax Significance of Daily Rates
Daily Rates in Tax Law
The concept of the daily rate also appears in tax law, for example, in the calculation of daily allowances or per diem rates. Here, the daily rate is a lump sum that can be deducted for tax purposes if work-related travel is involved. Reference values and the maximum deductible daily rates are regularly set by the tax authorities.
Daily Rate in International Legal Systems
Comparison with Systems of Other Countries
The daily rate system is known especially in German and other continental European legal systems. In some countries such as Switzerland and Finland, a similar system is used in which the monetary penalty is adjusted to the offender’s income.
Critique and Practical Relevance
Advantages and Disadvantages of the Daily Rate System
The daily rate principle is often praised for enabling individualized and fair sanctions. Critics, however, point out challenges in determining the actual income and the sometimes limited deterrent effect of monetary penalties for people with particularly high incomes. In practice, however, the system has proven to be rational and effective.
Summary
Der Daily rate is an essential instrument used in various areas of German law. It is of central importance in calculating monetary penalties in criminal law, but also plays a key role in civil, social and tax law. The daily rate regulation helps to adapt financial sanctions as well as compensation and substitute benefits to individual capacity and thus to ensure fairer application of the law.
Frequently Asked Questions
How is the daily rate calculated in criminal law?
In the context of criminal law, the daily rate is set individually in accordance with Section 40 (2) StGB. The amount of the daily rate is generally based on the net income that the offender earns on average in one day. For this purpose, the monthly net income is determined and divided by 30, and in addition to wages, benefits such as maintenance payments, social benefits or rental income may also be included. Non-cash benefits securing one’s livelihood are also taken into account. When calculating, the court has a certain discretion to consider special burdens or exceptional financial circumstances. The minimum daily rate under current law is 1 euro, the maximum is 30,000 euros (Section 40 (2) sentence 3 StGB).
Is the court required to determine the financial circumstances of the defendant when setting the daily rate?
Yes, the court is obliged to determine the economic and personal circumstances of the defendant as accurately as possible within the legal requirements. The duty to cooperate initially lies with the defendant, who must provide information about their income and assets. If the defendant does not fulfill this duty or provides implausible information, the court may estimate the amount of the daily rate—also to the detriment of the defendant—based on the available information (Section 40 (3) StGB). The court may also obtain information on their economic situation from authorities or question employers and financial institutions.
What role does net income play in the daily rate?
The offender’s average net income is the decisive basis for the value of a daily rate. Net income is what remains for the offender’s free disposal after deduction of all taxes, social security contributions, and fixed, necessary obligations (e.g., maintenance, rent). In the calculation, one-off income or monetary benefits are also taken into account if they are regularly available or have a significant impact on the lifestyle of the offender. Payments for liabilities resulting from voluntary consumption may not be deducted.
Can the daily rate be changed retroactively if financial circumstances change?
As a rule, the daily rate as set in the judgment applies. Subsequent changes are generally not provided for. However, in certain exceptional cases—such as when economic circumstances were erroneously established or in the event of a significant change in the personal or economic situation of the convicted person (such as sudden unemployment)—an adjustment may subsequently be made. This is possible under Section 459a StPO, usually in the context of payment relief or a deferral request, but not by a general amendment of the judgment after it becomes final.
What happens if the person concerned is unable to pay the daily rate?
If the convicted person is unable to pay the imposed daily rate or the resulting fine, substitute imprisonment, as per Section 43 StGB, is threatened. For each unpaid daily rate, one day of imprisonment must be served. However, the person concerned must be given the opportunity to apply for payment in installments or deferral (Section 459a StPO). The competent court or public prosecutor’s office will then assess the feasibility and the actual financial situation before enforcement is initiated.
Are there differences between daily rates in criminal law and administrative offenses law?
Yes, the daily rate as a measure is specifically provided for monetary penalties in criminal law according to Section 40 StGB and does not play a direct role in administrative offenses. In administrative offenses law, fines are imposed, the amount of which is determined by the income of the person concerned, the degree of guilt, and the illegality of the act; however, there is no daily rate calculation as in criminal law. Only in juvenile criminal law and in the area of so-called “Juvenile Court Assistance” is the daily rate applied in a special form.
