bAV: Penalty risk – Zillmerung without insurance cover ? ? or ?Zillmerung good ? all good? *

*by Johannes Fiala, Lawyer (Munich), MBA Financial Services (Univ.Wales), M.M. (Univ.), Certified Financial and Investment Advisor (A.F.A.), EC Expert (C.I.F.E.), Banker (
The insurance intermediary (agent and broker) is not insured by a property damage cover (VSH) if he intentionally or knowingly breaches his duties. What does this mean for the intermediary’s practice?
Knowingly breach of duty ? no VSH coverage: In the financial loss insurance conditions it says “The insurance coverage does not refer to liability claims … 5. due to damage caused by knowingly deviating from the law, regulation, instruction or condition of the party giving the power (entitled party) or due to other knowing breach of duty; ?
Typical example: An asset manager is claimed against by his client because he has bought too risky securities for the client’s custody account. The VSH insurer will deny coverage if there has been a deviation from the investment guidelines. The asset manager will have to pay for the lawsuit, expert witness fees and damages out of pocket. A good VSH insurance broker would have known this beforehand.
Sub-case ? Criminal liability: If the intermediary is (also) accused of a criminal offence, the VSH insurer will recognise this and refuse VSH cover because of ?deviation from the law?, VSH specialist broker R.W.Barth also knows.
Life-long social welfare or emigration?: If there is a conviction for a property offence, the intermediary is not entitled to residual debt discharge in the insolvency proceedings. This way of a reorganization is thus blocked. The statute of limitations of a “title for damages” lasts 30 years after a conviction ? after that the injured party could sue again if necessary.
By the way, as an intermediary you do not necessarily have to become a perpetrator, because of course instigation or aiding and abetting is also sufficient to lose the VSH protection. Dangerous concepts belong before on the test stand ? if necessary with a clean IDW-S4-Prospektgutachten. The reference of the initiator to ?renowned Kanzleien? or ?appraisals of important professors? replaces no own plausibility examination by the mediator. Law firms that advertise concepts also have no VSH protection, but are nevertheless liable for “advertising and favorable opinions”.
Punishability with the time value account, § 266 a StGB: A large bank trains respectable ? she points out the risk of criminal liability.
The speaker is an old hand in this business, a connoisseur of the subject. Incorrect insolvency protection means a risk of criminal liability – §§ 7 I a, 7 d SGB IV, § 266 a StGB.
However, most training managers are not even aware of this yet ? including the personal private liability risk. The vast majority of pledge and trust models are not worth the paper they are written on: A query with the initiator then reveals that ?external controlling? and ?internal quality management? are little known.
Criminal liability in the case of bAV, §§ 266a, 266 StGB: The Stuttgart Regional Labour Court (Az. 8 (6) 1152/04) dealt with ? with explicit reference to payments to pension funds ? in its judgement of 21.09.2004 with the withholding of remuneration, § 266 a StGB.
A ?private-law agreement? is sufficient to open up criminal liability ? i.e. agreements on the working time account or a bAV: So what does it look like if the initiator interposes a ?collection agency? (allegedly for reasons of portability) intervenes in the collection of premiums, and there ?30% administrative costs are deducted? Was the 30% then criminally withheld?
Risk from Zillmerung and equal value: The ?Stuttgarter judgement? of 17.01.2005 referred to a breach of the employer’s duty of disclosure, in a case of Zillmerung.
Dr. Reinecke goes even further, citing the duty of care (liability is assumed even without fault), in the case of a lack of equal value in the occupational pension scheme. Already when advising on the subject of occupational pension schemes, the indeterminate legal concept of “equal value” must be clarified. The Federal Supreme Court (BGH) recently wrote into the tax advisor’s book that he has to inform the client about the risks of an “undefined legal concept” if he does not want to get into liability.
For the tax advisor, this means a duty to take the “safest route” – that is, to recommend the safest or narrowest interpretation. This applies analogously to the insurance broker, whose duties go even further than those of the StB or RA. Even the simple intermediary will be in such a position of personal trust due to his usual expert advertising that he too cannot escape this duty. Which product providers have coherent educational concepts for advice?
The clever intermediaries have understood Dr.Reinecke to mean that, in the absence of equal value, both the deferred compensation and the contract with the product provider may be unlawful and thus (partially) void. After all, we are dealing with two contracts that are linked together as a bundle of contracts. The legal expert then says that the invalidity of one contract “passes through” to the other.
Who is afraid of the bogeyman? Particularly courageous initiators and product providers deduce from the Stuttgart judgement (probably wrongly) that even with regard to the lack of equal value, a simple formal explanation of the employees is sufficient: “The intermediary has to live from something”.
That an embezzlement according to § 266 StGB is not a theory is shown by judgements on the investment of a deposit with the landlord, or on the investment of capital-forming benefits with the employer. Criminal lawyers are also aware of embezzlement in practical cases by ?burdening with liabilities? (e.g. the zillmerized commission at the beginning of the running time of a LV?) or as ?omitted fortune-increase? (e.g. by missing equal value?).
For further reading: Kühl, Kristian, Kommentar zu § 266 StGB, in: Lackner, Karl (Begr.)/Kühl, Kristian, Strafgesetzbuch. Commentary, p. 1141 ? 1154, Munich 25th ed. 2004; and
Courage to punish and incite? The employer can be seen as a legal and/or contractual trustee with regard to the assets it manages in the context of a working time account or occupational pension scheme. This may give rise to a suspicion of breach of trust on the part of the employee. Read the following article: click here
So the question arises whether at least the risk of punishability could be eliminated by ?enlightenment? of the employee ? then there would still remain the liability for reversal in case of lack of equal value, § 134 BGB. In criminal law this is called ?consent? of the victim: A close examination shows that this hardly works, because the public prosecutor will call the consent ineffective in case of doubt, because the intermediary took advantage of the inexperience. Other defects of will would also intervene here. Moreover, the consent must not itself be contrary to law. Precisely this means the stillbirth of a criminal law release by clarification. For the legislator has not made the ?equality of value? dispositive, i.e. has not put it up for negotiation by employer and employee.
Hold product providers accountable: The Esser-Ackermann&Co. case, also known as the Mannesmann trials, showed how difficult it is to escape suspicion of embezzlement: Here there were at least a few legal opinions, which the BGH wiped off the table as untenable.
Why does ?Pfefferminzia? go to such lengths and have its employees write in technical essays ?Zillmerung gut ? alles gut?? The product providers could simply give a “guarantee of equal value”: If a product provider is sure that Zillmerung and equal value are not a problem, then surely a guarantee declaration can be issued for employers and intermediaries: Then please in writing, because a deed process can help save an incredible amount of time.
Complexity in the details: Of course, the types of commitment and the implementation channels play a role in the closer examination. The core issue here is deferred compensation for employees. One broker commented laconically, “I already know why I only deal with the GGF pension scheme, because the equality of value is not important there,” § 17 BetrAVG.

Our office in Munich

You will find our office at Fasolt-Strasse 7 in Munich, very close to Schloss Nymphenburg. Our team consists of highly motivated attorneys who are available for all the needs of our clients. In special cases, our law firm cooperates with selected experts to represent your interests in the best possible way.

About the author

Dr. Johannes Fiala Dr. Johannes Fiala

Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
»More about Dr. Johannes Fiala

On these pages, Dr. Fiala provides information on current legal and economic topics as well as on current political changes that are of social and/or corporate relevance.

Arrange your personal appointment with us.

Make an appointment / call back service

You are already receiving legal advice and would like a second opinion? In this case please contact Dr. Fiala directly via the following link.

Obtain a second legal opinion

The first telephone call about your request is free of charge.