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For a number of minor crimes several European countries use a system of day-fines where the fine you have to pay is a number of days decided after the crime and a per-day-value which is based on your income. The German law §40 StGB says the day-value should be 1/30 of your monthly net income. At what time is this net income assessed? Is it the net income at the time of the crime or the net income at the time of trial?

My motivation for this question was a recent ruling against German politician Kay-Uwe Ziegler where he was condemned to 60 days at 40 euros each. 40 euros day-fine corresponds to a monthly net income of only 1200 euros, this guy currently is a member of the German Bundestag so his current gross income is (at least) around 15000 euros per month, so these 40 euros seem extremely low.

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    Diäten are not necessarily income
    – Trish
    Commented Mar 13 at 19:19
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    @Trish The law roughly says (my translation) "The day-fine is set by the court using the personal and economic conditions. In general this is the net income." So Diäten should definitely count, even if you just live of say stock dividends or proceeds from online poker that should be counted.
    – quarague
    Commented Mar 13 at 20:26

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  1. Part of legal training is learning how to develop a reasonable answer on your own. There are already treatises weighing the pros and cons of considering

    • the net income at the time of the crime,
    • time of the sentence, or
    • time of payment.

    You always need to corroborate your claim with what policymakers intended. To summarize:

    • When the daily rate system was installed, policymakers considered and discarded the idea of assessing the income at the time of payment (Laufzeitgeldstrafe). You can read the reports (05/4095) and minutes of debate to learn more.

    • One of the purposes of punishment (Strafzweck) is reintegrating convicts into society (Resozialisierung). Now, if you deem the income at the point of time of the crime as relevant and the criminal has lost her job (i. e. a significant portion of income) in the meantime, she may feel overburdened by the owed amount, especially if it leaves nothing to live on. This may elicit feelings of resentment against society, thus rendering the “reintegration” aspect potentially ineffective.

      On the other hand, if the criminal barely earned anything at the point of time of the crime, but now has a significant source of income, the fine, the punishment may be unnoticeable: She does not have to defer any pleasant expenses, e. g. a vacation abroad, because of obligation to pay a fine.

    • At the time of sentencing is probably the most convenient regarding proving income, too.

  2. Lawyers do not know the entire law. In German practice, annotated codes of law (Gesetzeskommentar) are an essential tool. They are authored by legal professionals and as such non‑authoritative. The annotations just for § 40 comprise dozens of pages (including hundreds of citations).

    • aa) Maßgeblicher Zeitpunkt. Das tägliche durchschnittliche Nettoeinkommen des Täters ist grds. auf seine Einkommensverhältnisse zum Zeitpunkt bzw. im Zeitraum der letzten tatrichterlichen Verhandlung zu beziehen (allgM).

      Dr. Henning Radtke (editor). Münchener Kommentar zum Strafgesetzbuch. 4th ed. 2nd vol. C. H. Beck, Munich 2020, ISBN 978‑3‑406‑74602‑4, § 40, margin no. 71.

    • c) Das Zeitpunktproblem: Für die Bestimmung der Höhe des Tagessatzes sind grundsätzlich die Einkommensverhältnisse zum Zeitpunkt der letzten tatrichterlichen Verhandlung maßgeblich.

      Dr. Andreas Grube (editor): Strafgesetzbuch – Leipziger Kommentar. 13th revised ed. 4th vol. De Gruyter, Berlin 2020, ISBN 978‑3‑11‑030029‑1, § 40, margin no. 51.

    • Es kommt auf die wirtschaftlichen Verhältnisse zum Zeitpunkt der Entscheidung an (vgl. BGH 26, 328; 28 362);

      Dr. Thomas Fischer: Strafgesetzbuch. 71st ed. C. H. Beck, Munich 2024, ISBN 978‑3‑406‑80811‑1, § 40, margin no. 6a.

    They all say more or less the same: In general, net income is assessed at the point of time of sentencing.

    • A look into the future was warranted if there are definite clues about your future income, for example you are about to retire, or you have been laid off but still work today during the notice period.
    • A look into the past was warranted to determine an average in case of varying incomes.

  3. As an MP your economic situation can be likened to self‑employment. Thus the parliamentary allowance of 11k / month is actually the business’s income. However, the fine is supposed to hurt the individual, not the business.

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  • Thanks, so his income as a member of parliament should be used because that is what he was at the time of sentencing. Do you have any sources for your last paragraph? Members of parliament receive a Diät of around 10k euros, which wikipedia calls the salary and additional money for the various costs of being a member of parliament. So the 10k should be gross salary, the other 5k are part of the business income and not salary.
    – quarague
    Commented Jun 5 at 17:16
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    No, the annotations I skimmed over (and quoted) do not mention Member of Parliament or Diäten directly. Look, you also need to keep in mind the constitutional dimension: Art. 48 Ⅲ 1 GG grants MPs an income preserving their independence. If you assumed a net income of 15 k€, their independence could be threatened. The annotations emphasize, this isn’t merely a figure game. A judge needs to consider all circumstances. § 40 Ⅱ 1 StGB mentions “personal situation.” Arguably being an MP demonstrates democratic commitment to society, a goodwill. And § 46 Ⅰ 2 StGB mentions the anticipated effects.
    – Kai Burghardt
    Commented Jun 5 at 17:43
  • I didn't suggest a net income of 15k, I put 10k gross, so maybe 6k net income. There should be enough left for a minimal living standard but assuming a net income of 1200 as the judge did makes the fine mostly trivial for him which is explicitly not what is supposed to happen by what you wrote in the first section.
    – quarague
    Commented Jun 5 at 17:52
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    Sorry for writing the wrong number. Yeah, I think this warrants a separate Law.SE question (and proper answer). Mind you, the €1200 of (hypothetical) net income is the portion that exceeds the minimum subsistence level (Existenzminimum). § 40 Ⅱ 3 StGB specifically states that some money must remain available at the end of the day. It is more realistic to assume his actual net income was more like €2400 a month, but only €1200 of which are expendable without sending the convict into poverty. Note, fines have also been criticized for potentially incentivizing acquisitive crime.
    – Kai Burghardt
    Commented Jun 5 at 18:15

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