- §1. Whoever evades the performance of the maintenance obligation specified in terms of the amount by a court ruling, a settlement concluded before a court or other body or another agreement, if the total amount of arrears resulting from this is the equivalent of at least 3 periodic benefits or if the delay of the outstanding non-periodic benefit is at least 3 months, subject to a fine, imprisonment or imprisonment for a year.
- §1a. If the perpetrator of the act specified in § 1 exposes the entitled person to the inability to meet basic life needs, he shall be subject to a fine, the penalty of restriction of liberty or the penalty of deprivation of liberty for up to 2 years.
- §2. Prosecution of the offense specified in § 1 or 1a takes place at the request of the injured party, social welfare body or body taking action against the maintenance debtor.
- §3. If the injured party has been granted adequate family benefits or cash benefits paid in the event of the ineffectiveness of the enforcement of maintenance, the prosecution of the offense specified in §1 or 1a shall be carried out ex officio.
- §4. The perpetrator of the offense specified in §1 shall not be punished if, not later than within 30 days from the date of the first interview as a suspect, he has paid all maintenance in full.
- §5. The court shall refrain from imposing a penalty, if not later than within 30 days of the date of the first interrogation as a suspect, the perpetrator of the offense specified in § 1a has paid in full maintenance maintenance, unless the guilt and social harm of the act speak against refraining from imposing a penalty.
Article 209 of the Criminal Code establishes the offense of evasion of maintenance. The perpetrator can only be a person to whom a court, other body or contract imposes an obligation to pay maintenance.
The provision stipulates in §1 the basic type of this crime (threatened with a fine, restriction of liberty or imprisonment for a year), consisting in non-payment of a maintenance allowance equivalent to at least 3 benefits or, if the benefit is other than periodic - defaulting on performance 3 months, and in §2 the qualified type (threatened with a fine, restriction of liberty or imprisonment for up to 2 years), consisting in the fact that, while maintaining the same delays and the value of being in default of maintenance, the delay makes it impossible to satisfy the basic life needs of the entitled person to receive maintenance.
We can talk about committing a crime of non-maintenance when the person obliged to pay is objectively able to bear the costs of maintenance, but intentionally does not do so because of ill will (that is, "evades"). No criminal liability is assumed if non-payment is caused by an external cause beyond the control of the obligated person, e.g. due to serious illness or imprisonment when there is no possibility of earning or other sources of property.
It is also worth considering the qualified type of the crime in question and the explanation of the words "basic life needs" used by the legislator. In addition to the obvious items that provide a minimum of subsistence, such as clothing, food, hygiene products and housing, courts consider these needs quite broadly - in the case of a child, these may be necessary school books, language courses, cinema or theater tickets, and other cultural events that develop interests and talents and ensuring proper education and upbringing, as well as adaptation to life in society.
You can free yourself from criminal liability by paying all outstanding maintenance no later than 30 days before the date of your first interview as suspect. The interest of the entitled person and his needs are higher here than criminal liability, however, fulfilling only part of the benefit within the said period does not mean compensation for the damage and release from criminal liability. It is worth emphasizing here that fulfillment is required on time, but not in the form of a one-off repayment of the outstanding benefits. Therefore, maintenance can be paid in several installments so that it falls within the statutory deadline.
He is not criminally liable if he fails to pay the child's father if the mother's financial situation is so good that the maintenance would not affect the child's situation. Of course, civil law claims are not excluded, but criminal liability is excluded.
[Legal status as at April 2020]