Concept and general definition of ancillary legal consequences
The term ancillary consequences refers, in a legal context, to sanctions or measures that are imposed in addition to a principal penalty, main relationship, or primary legal consequence, or that arise by operation of law. Ancillary consequences are thus responses by the state to unlawful conduct, additions to legal transactions, or automatically triggered legal effects that can occur independently of the parties’ will. They are significant in various areas of law, each exhibiting different forms and legal bases.
Ancillary consequences in criminal law
General information
In criminal law, ancillary consequences refer to measures ordered in addition to a principal penalty such as imprisonment or a fine, to achieve additional effects. The distinction between principal penalty and ancillary consequence is important for the application of the law and for determining criminal consequences.
Statutory regulations
Key provisions for ancillary consequences in criminal law are found in the Criminal Code (StGB), namely in §§ 44 ff. StGB and in special legislation in other legal norms. They are imposed by courts in the course of criminal proceedings either on a discretionary or mandatory basis.
Typical ancillary consequences under the StGB
- Driving ban (§ 44 StGB): This concerns the temporary revocation of the right to drive motor vehicles on public roads.
- Confiscation (§§ 73 ff. StGB): The state’s confiscation of means, products, or proceeds of a crime constitutes asset forfeiture.
- Occupational ban (§ 70 StGB): The court can order that a person who has been convicted with final effect may not practice certain professions, trades, or activities for a period of time.
- Loss of public office and honorary rights (§§ 45 ff. StGB): Convictions with certain sentences often result in the loss of public rights.
Distinction: ancillary consequence and measure
Ancillary consequences are to be distinguished from measures of rehabilitation and security (e.g., preventive detention, supervisory orders, commitment to a detoxification facility). While measures serve to protect society and rehabilitate, ancillary consequences relate to the response to the individual offense and its effects.
Ancillary consequences by operation of law
Some ancillary consequences arise by operation of law regardless of a judicial order, for example, the loss of certain rights according to § 45 StGB, when a prison sentence of a certain length is imposed.
Ancillary consequences in civil law
General information
In civil law, ancillary consequences refer to additional legal effects of a legal transaction or judicial decision that occur alongside the primary effect. They can result from the German Civil Code (BGB) or other civil law provisions.
Typical ancillary consequences of civil law transactions
- Default interest in case of performance disruptions: In addition to the claim for primary performance, ancillary consequences in the form of default interest and claims for damages may arise in case of default.
- Contractual secondary obligations: In addition to the primary obligations of a contract (e.g., delivery of goods and payment of the purchase price), there are regularly secondary obligations such as duties of care, protection, and obligations to inform, explain, or show consideration (§ 241 para. 2 BGB).
- Withdrawal and unwinding: Withdrawal from a contract requires that the benefits received are returned and, if applicable, compensation for value or surrender of benefits of use is provided.
Ancillary consequences of judicial decisions
In civil court decisions, ancillary consequences can include, for example, the creation of enforcement claims, the order of security measures, or effects on secondary claims such as interest and costs.
Ancillary consequences in administrative law
Ancillary consequences in administrative proceedings
Ancillary consequences also exist in administrative law, which may follow administrative acts. They may be explicitly attached to an administrative act or occur automatically by law.
Examples
- Ancillary provisions (§ 36 VwVfG): These include conditions, requirements, time limits, and revocation reservations that are attached as ancillary consequences to an administrative act to provide flexibility for administrative action or to control risks.
- Automatic legal effects: The revocation or withdrawal of certain permits may, by law, trigger further ancillary consequences, such as the expiration of rights or the obligation to reverse measures.
Ancillary consequences in social law
In social law, ancillary consequences may arise as additional legal effects in the granting or withdrawal of benefits. In addition to the primary benefit, there may be supplementary claims for reimbursement, revocations, or recoveries.
Ancillary consequences in administrative offences law
In the law of administrative offences, ancillary consequences are measures imposed in addition to a fine. This includes, for example, the driving ban (§ 25 StVG), which can be imposed alongside a fine for traffic offences.
Systematics and distinction
Principal and ancillary consequences
The distinction between principal consequences (e.g., principal penalty, primary performance) and ancillary consequences is fundamental for the application of the law. Ancillary consequences require that a principal consequence has already occurred or a principal measure has become effective. They regularly serve to intensify legal protection, enforce the law, or strengthen the system of state sanctions.
Determining criteria
Whether a legal consequence is classified as an ancillary consequence depends on two main criteria:
- It occurs in addition to the principal consequence.
- It contributes to the full enforcement or safeguarding of the law.
Significance in legal application
Ancillary consequences have considerable practical significance. In criminal and administrative offences law, they can significantly aggravate the consequences of an offense; in administrative law, they ensure effective administrative control, while in civil law, they support the protection of contractual relationships and parties.
Particular features arise in respect of:
- Legal remedies and contestability of ancillary consequences in court and administrative proceedings,
- Requirements of specificity and proportionality,
- Conditions for the automatic occurrence and the independent imposition.
Literature
- Schönke/Schröder, Criminal Code, 30th edition, §§ 44 ff.
- Fischer, Criminal Code, Commentary, current edition.
- Palandt, German Civil Code (BGB), current edition, § 241 BGB.
- Kopp/Ramsauer, VwVfG, § 36.
Note: The term “ancillary consequence” is comprehensive and multifaceted. Its specific manifestation always depends on the particular norm and the relevant area of law. Careful distinction must always be made between ancillary consequences and other forms of legal consequences.
Frequently Asked Questions
What is the legal significance of ancillary consequences in German criminal law?
In German criminal law, ancillary consequences are legal effects or consequences of a conviction by a criminal court that do not qualify as actual penalties or as measures of rehabilitation and security. Legally, it is important to note that ancillary consequences are not intended to punish or improve the offender in the strict sense, but typically pursue additional protective or preventive interests of the public or certain legal interests. They are regulated by specific provisions in the Criminal Code (e.g., §§ 44, 45 StGB) as well as in ancillary statutes and often depend on the existence of certain procedural prerequisites or qualifying offenses. Ancillary consequences take effect upon final judgment and can be either mandatory (required by law) or discretionary (at the court’s discretion). Significant examples include loss of eligibility for public office, withdrawal of a driving license, or an order of forfeiture.
How do criminal ancillary consequences differ from direct penalties?
While direct penalties—such as imprisonment or fines—represent a primary response to the legal violation and are tailored to individual culpability according to the principle of guilt (§ 46 StGB), ancillary consequences are legally accessory to the principal penalty. This means they usually require a conviction for an offense, but—unlike penalties—do not serve as compensation for committed wrongdoing, but rather fulfill higher interests of legal protection or special preventive objectives. Legally, an ancillary consequence may also occur regardless of the degree of culpability, provided the law stipulates it (e.g., mandatory withdrawal of the driving license for specific road traffic offenses under § 69 StGB).
In which laws are the imposition of ancillary consequences regulated?
The central statutory provisions for ancillary consequences are found in the Criminal Code (StGB), for example:
- § 44 StGB: Driving ban,
- §§ 45, 45a, 45b StGB: Loss of eligibility for public office, ability to stand for election, and voting rights,
- § 69 StGB: Withdrawal of the driving license,
- § 73 ff. StGB: Asset confiscation, forfeiture, confiscation.
Furthermore, numerous special statutes (e.g., the Condominium Act, the Federal Election Act, or professional regulations) contain additional ancillary consequences. The imposition, duration of effect, and legal effects are governed by the respective legal provision, with some regulations being mandatory and others discretionary.
Is the court bound by specific requirements when imposing ancillary consequences?
Yes, the imposition of ancillary consequences generally requires the existence of certain statutory prerequisites. In the case of mandatory ancillary consequences, the court is obliged to impose them once the specified elements are fulfilled (e.g., withdrawal of the driving license after repeated drunk driving pursuant to § 69 para. 2 StGB). For discretionary ancillary consequences, the court has a margin of discretion, which must, however, be exercised according to general principles (§ 46 StGB) and with regard to proportionate sanctioning as well as the protection of legal interests. In some cases, individual circumstances and the consequences for the convicted person must also be considered in the exercise of judicial discretion, such as when determining the duration of a driving ban.
What are the legal options for contesting an ancillary consequence?
Legally, the imposition of an ancillary consequence can generally be challenged by means of legal remedies, in particular, by appealing or applying for revision against the criminal court judgment. In the appeals process, the ancillary consequence(s) can be specifically contested, for example, if the legal requirements are not met or discretion has not been properly exercised. After the judgment has become final, for some ancillary consequences—such as the withdrawal of a driving license—a subsequent application for reinstatement may be possible. In such cases, the special statutory regulations of the particular ancillary consequence (e.g., time limits under driving licensing law) apply.
Do criminal ancillary consequences also affect civil or administrative proceedings?
Criminal ancillary consequences can, under certain circumstances, have effects on civil or administrative proceedings. For example, the withdrawal of the driving license by a criminal court constitutes a final administrative act that must also be taken into account under road traffic law. Loss of eligibility for public office may affect status in public service or association law. In individual cases, ancillary consequences can also result in further civil law consequences, such as when they are a prerequisite for the withdrawal of insurance benefits or exclusion from mandates. The reach of such effects is determined by the relevant legal bases outside of criminal law.
Can ancillary consequences lapse after a certain period or under certain conditions?
Many ancillary consequences can be lifted or mitigated after the expiration of a legally specified period or under certain conditions. For example, in the case of loss of eligibility for public office or voting rights under § 45b StGB, there is the option of restoration by court order after the statutory time limits have elapsed. Also, after the withdrawal of the driving license, the individual can apply for reinstatement after the period of disqualification, which is decided by the administrative authority. The specific time limits and requirements must each be examined in their special statutory context, as well as the possibility of early reinstatement by the court or the competent authority, if a positive social prognosis can be established.
