The legal concept of limitation occurs in all areas of German law. In civil law, the statute of limitations means that a creditor can no longer enforce his claim against the debtor – but the debtor can, of course, still perform voluntarily because the claim has not expired.
In criminal law and administrative offences law, the statute of limitations means that there is an impediment to proceedings – the criminal offence or the administrative offence can no longer be prosecuted.
In public law, as in civil law, the statute of limitations means a right to refuse performance.
A. Overview of the statute of limitations in civil law
The statute of limitations in civil law means that after the expiry of a legally determined period, a claim can no longer be enforced by the creditor against the debtor. The claim as such does not expire, but the debtor can raise the defence of limitation against the creditor, for example in a court case, so that the creditor will not prevail if the claim is time-barred. The debtor then has a right to refuse performance.
The legal institution of limitation serves legal peace and the security of legal transactions. Debtors should not be exposed to a claim for an indefinite period of time. Nor should they wait indefinitely to see whether or not a claim will be brought against them. This would lead to great uncertainty. Rather, creditors should be encouraged to assert their claims within a reasonable time.
Courts, on the other hand, should be protected from having to deal with claims that are years old. An important aspect is also the collection and preservation of evidence, which of course becomes increasingly difficult after years. Often one has to rely on witness evidence. However, the more time passes, the more difficult it becomes to remember the specific incident. Objects that are in use or consumed, for example, can also no longer be used to preserve evidence after a certain period of time. In some cases, it may also be difficult to find out after a certain period of time whether a defect exists due to an error in manufacture or installation or due to years of incorrect operation.
Taking these ideas into account, the law provides for limitation periods of varying lengths. These range from 6 months to 30 years.
However, the regular limitation period is 3 years according to §195 BGB. It begins at the end of the year in which the claim arose and the creditor became aware of the circumstances giving rise to the claim and the person of the debtor or should have become aware without gross negligence.
This regular limitation period always applies if no more specific limitation period is regulated in the BGB or in special laws.
- Section 548 BGB, for example, regulates that the landlord’s claims for compensation due to change or deterioration of the rented property and the tenant’s claims for compensation due to expenses become time-barred in 6 months. §Section 196 BGB, for example, regulates that claims for transfer of ownership of a property become time-barred in 10 years, and Section 197 BGB provides, among other things, for a 30-year limitation period for claims for damages based on intentional bodily harm, as well as claims that have been finally determined by a court of law or claims arising from enforceable (court) settlements or enforceable (notarial) deeds.
Contractually, the limitation periods can be shortened or extended. Here, too, the law does not allow unlimited contractual freedom. According to § 202 BGB, the limitation period cannot be shortened in advance for intent and generally cannot be extended to more than 30 years. A change of the statutory limitation periods by general terms of business is not possible without further ado. Here the provisions of § 305 et seq. of the German Civil Code must be observed.
The limitation period can be suspended by certain circumstances. This means that the time limit does not continue to run during the period of inhibition The limitation period continues to run as soon as the reasons for inhibition cease to exist.
Under certain circumstances, the limitation period can also start anew. For example, recognition of the claim by the debtor leads to a new start.
Overview of the statute of limitations in criminal law
Various types of limitation apply to criminal law, with specific limitation periods (regulated in sections 78 et seq. of the Criminal Code). It always depends on the offence committed when the limitation period begins. However, the more severe the expected sentence, the longer the limitation period. The statute of limitations determines the period of time within which a criminal offence can be prosecuted and punished.
The statute of limitations ultimately also relieves the police and the judiciary. In addition, the statute of limitations is intended to serve the rehabilitation of the offender. There is another reason that speaks for the construct of the statute of limitations. If no statute of limitations were to expire, this could, in case of doubt, also lead to less pressure to investigate more unspectacular cases with the necessary vigour.
Furthermore, it is assumed that society’s need to compensate for the injustice committed through punishment diminishes over time. In the case of crimes committed a very long time ago, there is less need for atonement than is the case with current crimes.
Murder, however, is always a special case in the statute of limitations, because murder is never barred by the statute of limitations (cf. section 78, paragraph 2 of the Criminal Code). And other serious crimes are also exempt from the statute of limitations, such as:
- War rimes
- Crimes against humanity
The statute of limitations for prosecution is laid down in Section 78 of the Criminal Code. The statute of limitations for prosecution makes it impossible to punish the offence after a certain period of time has elapsed, thus a procedural obstacle arises after a certain period of time. The statute of limitations for prosecution begins with the termination of the offence. If proceedings are nevertheless instituted after the expiry of the statute of limitations, they must be discontinued.
However, there are various provisions in individual laws that enable judges to postpone the statute of limitations for prosecution within the framework of so-called interruption circumstances. The statute of limitations for prosecution also prevents the person in question from being considered to have a criminal record, because the statute of limitations for prosecution means that proceedings and prosecution become time-barred, so a criminal record cannot arise in the first place. And this applies even if the person has actually committed a criminal offence. The offender could even confess to the offence, but the statute of limitations would still prevent proceedings or a conviction.
The statute of limitations therefore applies to offences that occurred many years ago. When the respective time limit under section 78 of the Criminal Code has expired, it is no longer possible to prosecute the corresponding offence.
The statute of limitations for enforcement must be distinguished from the statute of limitations for prosecution. The statute of limitations for enforcement occurs when a final sentence or measure has been imposed. Once the limitation period for enforcement has expired, it may no longer be enforced.
The fact that a penalty can no longer be enforced does not mean that the penalty itself does not exist. It is only no longer possible to enforce it.
However, preventive detention and life sentences are not subject to the statute of limitations.
The limitation periods for enforcement are found in section 79 of the Criminal Code.
Despite the statute of limitations for enforcement, a sentence remains on the criminal record even if it has not been enforced.
However, the person concerned is still considered to have a criminal record and must answer truthfully if, for example, he or she is asked about any previous convictions during a job interview.
The statute of limitations for enforcement thus determines the period during which an offender who has already been convicted can still be imprisoned.
Overview of the limitation period in administrative law
In administrative law, there are various time limits known as limitation periods. These time limits determine the period of time within which certain claims or remedies must be brought. The limitation period in administrative law can vary depending on the type of claim or remedy.
The following important limitation periods, among others, apply in administrative law:
Limitation of claims for damages:
Claims for damages against the public administration are often subject to a three-year limitation period. As a rule, this period begins at the time when the claimant became aware of his or her damage and the causation by the administration.
Limitation of administrative acts:
Administrative acts, such as administrative decisions or notices, may also be subject to a limitation period. The exact period depends on the type of administrative act and the relevant legal provisions. In many cases, however, the limitation period is five years.
Limitation of objections and actions: Objections to administrative acts and actions before administrative courts must be filed within certain time limits in order to be admissible. These time limits may vary depending on the federal state and the administrative procedure, and it is important to observe the respective legal provisions. In German administrative law, there are general regulations on the time limits for bringing an action, which are laid down in the Administrative Court Act (VwGO). In principle, according to section 74(1) VwGO, the time limit for bringing an action is one month. This period begins with the notification of the administrative act to the person concerned. As a rule, notification is effected by service of the administrative act.
It is important to note that the time limit for bringing an action must be strictly observed. If the time limit for bringing an action is missed, this may result in the action being dismissed as inadmissible.
However, there are some exceptions to the one-month time limit for bringing an action. For example, according to section 58 VwGO, in the case of an action for failure to act against an authority that has not yet decided on an application, an action may be brought without observing a time limit.
It should be noted that the statute of limitations in administrative law can be complex and depends on many factors.