Credit fraud
In the criminal law of the Federal Republic of Germany, credit fraud is a property offense that is regulated as an offense in Section 265b of the Criminal Code. The offense is in the context of the fraud offense of § 263 StGB.
Criminal policy goal of the introduction
The offense of credit fraud was added to the penal code in 1976 by the first law to combat economic crime (1. WikG). In terms of criminal policy, the provision was based on the fact that the specific danger that threatened by fraudulent business credit could be prevented more effectively by a separate offense than by the regular fraud offense of § 263 StGB. With it the lender, indirectly also the depositors of the credit institutions, the business partners of the borrower, the employees and ultimately the entire banking industry should obtain more effective protection. Section 263 of the Criminal Code - as fraudulent entry - is faced with the difficulty that often the intent with regard to property damage or endangerment can hardly be determined if the borrower is only too optimistic about his situation and its development. Section 263 of the Criminal Code is not superseded or restricted by Section 265b of the Criminal Code.
Offense
Loans within the meaning of this law are both monetary loans ( §§ 488 ff. BGB ), so-called acceptance credits (i.e. bills of exchange issued to the bank customer by the bank), but also monetary claims that are acquired against payment, deferrals of monetary claims, the discounting of Bills of exchange and checks as well as sureties and guarantees. The concept of credit is not the same as Section 19 of the German Banking Act .
Section 265b of the Criminal Code is an abstract endangering offense that precedes Section 263 of the Criminal Code due to a limited range of offenses. The offense is providing incorrect information in the loan application . It is irrelevant whether the information is provided in writing or through the submission of false or incomplete documents or through the suppression of documents relevant to the decision. The information or documents that were submitted incorrectly must be advantageous. The lender does not need to have recognized this.
Companies or businesses that could be endangered are all companies and businesses that correspond to the concept of an actual businessman or an optional businessman according to § 1 , § 2 HGB . Public law institutes are also included.
Criminal policy considerations
The offense has been designed as an abstract endangering offense and has received considerable criticism in science. The targeted effectiveness of the criminal offense has not yet been achieved. Only the intended large loans were covered by the legislature, but the wording of the offense opens up penalties for the offense for all loans. There is also a dispute over the protected legal interest. While on the one hand it is argued that this is the banking industry in general, on the other hand it is intended to protect the assets of others (as in the case of fraud). The provision is constitutionally unobjectionable. Compared to other property crimes, credit fraud generally takes a back seat ( subsidiary ).
