translate the following text into English: self-employed
October 23, 2009 | 20,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
Hello, I have registered a business and the trade office told me that I should cancel the business because I have a guardian who also says that my criminal record is not clean. They told me that if I do not cancel the business, they will press charges against me. Please help me, I do not want to ruin my independence.
Dear inquirer,
Thank you very much for your inquiry!
I would like to address your questions taking into consideration the facts you have provided as follows:
Under certain conditions, the authority, specifically the trade office (Gewerbeamt), may refuse the operation of a business, which would result in the business needing to be deregistered. When this is the case, it is regulated by law in § 35 of the Trade Regulation Act, which I have attached for your better understanding:
§ 35 GewO
Prohibition of Trade due to Unreliability
(1) The competent authority may entirely or partially prohibit the operation of a business if there are facts that demonstrate the unreliability of the business owner or a person entrusted with the management of the business concerning this business, if the prohibition is necessary to protect the general public or the employees in the business. The prohibition can also extend to the activities as a representative of a business owner or as a person entrusted with the management of a business, as well as to individual or all businesses, to the extent that the established facts justify the assumption that the business owner is also unreliable for these activities or businesses. The prohibition procedure can continue even if the business is discontinued during the procedure.
(2) Upon request, the business owner can be allowed by the competent authority to continue the business through a representative (§ 45) who ensures proper management of the business.
(3) If the administrative authority wishes to consider a factual situation in the prohibition procedure that was the subject of a judgment in criminal proceedings against a business owner, it cannot deviate to his detriment from the content of the judgment as far as it relates to
1. the establishment of the facts,
2. the assessment of the question of guilt, or
3. the assessment of whether he will commit significant unlawful acts within the meaning of § 70 of the Criminal Code and whether the prohibition of the business is appropriate to prevent these dangers.
Paragraph 1 sentence 2 remains unaffected. The decision on a temporary occupational ban (§ 132a of the Code of Criminal Procedure), the penal order, and the judicial decision refusing to open the main proceedings are equivalent to a judgment; this also applies to fines decisions, insofar as they relate to the establishment of the facts and the assessment of the question of guilt.
(3a) (omitted)
And so on...
As you can see from this paragraph, there are many reasons that can lead to the prohibition of a business permit in individual cases. The law summarily refers to this as "unreliability."
I assume that the authority refers to "unclean" conduct certificates in terms of possible criminal records.
It is not the case that a business must be deregistered generally for every criminal record. This is generally only the case if the offense for which the business owner is convicted is related to the execution of the business.
Whether this is the case for you cannot be conclusively determined remotely in an initial consultation. Therefore, I advise you to consult a colleague on-site to clarify this question.
In this regard, your conduct certificate would need to be requested first to check for any discrepancies and on the other hand, it would need to be known since when you have been engaged in which business, so that a final evaluation can be made as to whether this business deregistration is justified due to a criminal record or similar.
The mention of the supervisor is also noteworthy. If the supervisor is to oversee you entirely, especially in all business matters, meaning you cannot or are not allowed to conduct any business yourself, the authority would also be justified in deregistering the business from this standpoint.
However, you have not provided information on the extent of the supervision in your case, so this point would also need to be clarified by a local attorney within the scope of a mandate.
I hope that my explanations have been helpful to you. Please feel free to contact me through the follow-up option on this platform or via my email address.
I would like to finally point out the following: The legal advice I have provided is solely based on the facts you have provided. My response is only an initial legal assessment of the situation, which cannot replace a comprehensive evaluation of the facts. Adding or omitting relevant information can lead to a completely different legal assessment.
I wish you a pleasant Friday afternoon and a lovely weekend!
Kind regards,
Dipl.-Jur. Danjel-Philippe Newerla, Attorney
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
Fax. 0471/57774
