Surreptitious achievement

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The unjustified enrichment is in German criminal law a crime , which in the 22 section of the part particularly of the Criminal Code (CC) in § 265a is normalized Criminal Code. He is one of the property offenses .

The purpose of the penal norm is to protect the property of those who offer certain services to the public for a fee. This includes the performance of a machine and a telecommunications network serving public purposes, transportation by means of a means of transport and access to an event or facility. The criminal act is to obtain such a service by fraud. The norm was incorporated into the Criminal Code with effect from September 1, 1935, in order to close a gap in the criminal liability of fraud ( Section 263 StGB). This resulted from the increasing use of mechanical devices instead of personnel in mass traffic, for example the use of ticket machines instead of conductors: only with the latter could the act of fraud, deceiving another person, be carried out.

A prison sentence of up to one year or a fine can be imposed for fraudulent payments. In 2017, the police registered 245,696 cases of fraudulent activity. By far the largest proportion of the reported offenses related to obtaining a transport service by fraud , that is, fare dodging.

Normalization

Since its last change on December 24, 1997, the offense of fraudulent benefits standardized in Section 265a StGB has been:

(1) Anyone who steals the performance of a machine or a telecommunications network serving public purposes, the transport by a means of transport or the access to an event or a facility with the intention of not paying the fee, will be punished with imprisonment of up to one year or a fine punished if the act is not threatened with a heavier penalty in other regulations.

(2) The attempt is punishable.

(3) Sections 247 and 248a apply accordingly.

Because of the standard penalties of imprisonment for up to one year or a fine, the offense is a misdemeanor according to Section 12 (2) of the Criminal Code . The offense serves to protect assets: it protects the providers of financial services by penalizing the use of these services without paying the required fee by the alleged service sneak.

History of origin

The improper use of a public payphone , which was paid for with broadly knocked 2- Reichspfennig pieces instead of groschen , led to a decision by the Reich Court . As a result, on September 1, 1935, the penal norm of Section 265a of the Criminal Code was incorporated into the Criminal Code in order to close a gap in the criminal liability of fraud ( Section 263 of the Criminal Code). Criminal liability for fraud requires that a person be deceived about a fact . However, this was often missing when someone made unjustified use of a service. This is because for services that are typically open to a large audience, machines have increasingly been used instead of staff to authorize a customer to use the service (for example by issuing a ticket ) or to check the existence of one (for example through a turnstile ). A criminal liability for fraud is ruled out in such cases, since the perpetrator does not gain access to the service by outwitting a person, but by bypassing or overcoming an automated device.

On August 4, 1953, the legislature introduced a criminal complaint requirement for certain case constellations. On September 1, 1976, the legislature expanded the scope of the objects of crime to include a telecommunications network . On December 24, 1997, he replaced the concept of telecommunications by the telecommunication network to the norm of the term election which took place on 25 July 1996 Telecommunications Act adapt.

Out of the four groups of cases in the standard, fraudulent transport is by far the most common. In law and politics it has long been disputed whether this behavior is actually punishable. In some cases, the deletion of § 265a StGB without replacement is called for. Others urge that Section 265a of the Criminal Code should be retained, albeit more restrictively: the norm should only apply to behaviors that are comparable to fraud in terms of their commission and their injustice. Others, in turn, suggest that the fraudulent activity of a transport service should be removed from the group of inspection methods in Section 265a of the Criminal Code and downgraded to an administrative offense .

Objective fact

Offense

The act made punishable by Section 265a of the Criminal Code is to obtain one of the services mentioned in the offense. Which behaviors can represent a creep depends in detail on the respective performance. What is the defining characteristic of creeping is, however, already controversial across all variants: In some cases, the focus is on the unjustified use of the service, so that even its illegal use constitutes creeping. However, the prevailing view is that this is not enough. On the one hand, it is doubtful that even an unauthorized use could be described as fraud. On the other hand, the relationship between the norm and the offense of fraud, which requires acts of deception, must be taken into account. Since Section 265a of the Criminal Code is intended to cover acts that cannot be subsumed under the fraud offense simply because there is no addressee of deception, the quality of the fraudulent activity must be comparable to deception in the sense of the offense of fraud. It is therefore necessary that the perpetrator expresses that he wants to receive the benefits of the service without paying the fee. For example, climbing over a barrier or bypassing a control person come into consideration.

Performance of a machine

A machine is a device that independently fulfills a predetermined function. This function must be of a paid nature. Although this does not result directly from the wording of the offense, it is recognized as an unwritten factor because the standard serves to protect assets.

A distinction is made between automated and vending machines. The former include devices in which the user pays for the machine to provide a service. This is the case, for example, with music machines and slot machines, binoculars with a coin slot and loading terminals for loading prepaid cards. With a vending machine, on the other hand, the user pays the fee for the vending machine to dispense goods, which applies to drinks vending machines , for example . There is a dispute with regard to the legal classification of vending machines: In some cases, they are not regarded as suitable objects of crime, as Section 265a of the Criminal Code explicitly speaks of a service. In addition, the manipulation of a vending machine is already covered by other facts: breaking open and removing the contents, for example, falls under theft . Since section 265a of the Criminal Code only has a gap-closing function, the purpose of the norm is not applicable if the offender's actions already fall under another criminal norm. The opposite view, on the other hand, also sees slot machines as objects of crime, since the delimitation of vending machines and slot machines is regularly associated with great uncertainty due to the variety of possible machine functions, so that largely random results are to be feared. The catching function of Section 265a of the Criminal Code could more appropriately be taken into account in the final examination of the competition between several committed offenses.

The performance of the machine is fraudulently achieved by the perpetrator outsmarting the control mechanism of the device. This can be done, for example, by using counterfeit money to overcome a coin validator.

Service of a public telecommunications network

A telecommunications network is a system that is used to transfer data. These include, for example, telephone and radio networks as well as the Internet. The communication network serves public purposes if it is at least largely intended for use by the public. The achievement of such a network lies in the establishment of a means of communication. It is obtained fraudulently by the perpetrator overcoming a device that is intended to ensure that the service is only used against payment. This is the case, for example, if the perpetrator bypasses the access barring of a pay-TV program or operates a payphone with counterfeit money. Often times, for example when using a dummy telephone card, the creeping of services is at the same time a computer fraud (§ 263a StGB), which takes precedence over the facts of § 265a StGB.

Transportation by a means of transport

The subject of this variant of the facts is a transport service, for example by bus, train or taxi. What is in dispute is what requirements must be placed on obtaining such a service by fraud: there is agreement that the perpetrator acts in accordance with the facts if he switches off or bypasses a control device, for example by using an emergency exit or by deliberately hiding from an inspector. What is more controversial is the practically far more important constellation of riding on trams and local trains, in which there are no control devices, i.e. the simple fare dodging: As a starting point, the case law recognizes that the offense of Section 265a of the Criminal Code, the sneaking, is more than just the unjustified claim a performance requires. However, she already sees a sneaking as given if the perpetrator gives the impression that he is properly using the service. It is sufficient for this if the perpetrator uses the service in a way that looks as if he were entitled to do so. The jurisprudence justifies this view with the fact that the concept of fraud, according to general understanding, already encompasses behavior through which the result of the crime is brought about in an unlawful, unfair or immoral way. For this reason, it could be sufficient for criminal liability under Section 265a of the Criminal Code if the perpetrator behaves inconspicuously while the service is being used so that there are no doubts about his or her justification.

This interpretation is accused of leading to an expansion of the scope of the standard that is not intended by the legislator: The formula of case law ultimately justifies the unauthorized use of the transport service, since someone who appears to be entitled to use it creates the impression of proper use User behaves. This also goes beyond the wording of Section 265a of the Criminal Code, as it does not correspond to the general understanding of the term sneaking if someone merely behaves inconspicuously and refrains from further fraudulent behavior. Furthermore, the creep in the other variants of the action of § 265a StGB requires a manipulative action on the part of the perpetrator, which usually does not represent the fare dodging, so that the interpretation of the case law leads to an inconsistent handling of § 265a StGB. The Federal Constitutional Court nevertheless approves this interpretation and considers it to be compatible with the criminal law requirement of certainty , since it corresponds to the will of the legislature and the function of the norm.

It is undisputed that a user is not acting in accordance with the facts of the matter if he has paid the required fee but is not allowed to use the service for other reasons, for example due to a ban on entering the building .

Likewise, according to Section 265a of the Criminal Code, anyone who uses the service for a longer period of time than the remuneration initially paid allows him / her: Since the perpetrator legitimately uses the service at the beginning of the transport, it can only be omitted be punishable as failure to act. According to Section 13 (1) StGB, such criminal liability presupposes that the perpetrator has the legal obligation to avert the occurrence of success. However, there is no sufficiently close relationship between the perpetrator and the injured party to justify such a guarantee obligation.

Ultimately, there is no fraudulent activity if the offender openly shows that he is not entitled to use the service, as this does not correspond to the literal meaning of the term fraudulently . According to a judgment of the Court of Appeal , however, it is not sufficient to wear a credit card-sized sign on one's clothing, as this is not conspicuous enough to break the appearance of proper use. Even a T-shirt with the label “I drive black” is not enough to avert the offense. However, in 2013 the district court of Eschwege ruled that wearing a slip of paper with the inscription “I drive for free” excludes criminal liability for fraudulent performance.

It is controversial whether bribing a control person can be seen as fraudulent activity.

Access to an event or facility

Events are one-off performances or performances that are performed for a specific period of time. These include concerts, theater performances and cinema shows. Facilities, on the other hand, are offers that are designed to last. These include, for example, libraries, museums and swimming pools. Both objects of crime must have a physical demarcation that prevents unhindered access. This is the case, for example, in parking garages with an entrance barrier, but not in freely accessible parking spaces that are equipped with a parking meter.

Access is obtained fraudulently by outsmarting a control person or overcoming an obstacle to entry. The former includes, for example, distracting or luring a control person away or hiding in a crowd. For the latter, for example, climbing over a fence or using an emergency exit can be considered. On the other hand, there is no creep if the perpetrator neither has to outsmart a control person nor overcome an obstacle in order to claim the benefit. Since section 265a of the Criminal Code only prohibits access by fraud, it does not fall within the scope of the norm if the perpetrator makes use of an offer for which the fee is only to be paid after the service has been used. This is regularly the case with parking garages.

Subjective fact

When committing the act, the offender must act with intent with regard to all objective elements of the offense. Any form of intent is sufficient, including contingent intent . The perpetrator must therefore at least have knowledge of the objective characteristics of the offense and accept the occurrence of the offense. In addition, he must commit the act with the intention of not paying the fee in full.

attempt

The trial of Erschleichens of benefits is punishable. It is true that § 265a paragraph 1 of the Criminal Code only a misdemeanor is, then the offense is not that the experiment of § 23 paragraph 1 Version 1 of the Criminal Code provides, § 265a , however, the attempt criminality paragraph allocates 2 SCC explicitly.

An immediate action required for the attempt is, for example, entering the means of transport before it has left. Preparing the manipulation of a security device, on the other hand, usually represents an unpunished preparatory act.

The trial phase ends with the completion of the offense. This point in time is reached when the financial loss occurs. Particularly in the case of services that are provided over a longer period of time, such as a transport service, this leads to difficulties in distinguishing between attempt and completion. For example, when getting a promotion by fraud, the prevailing view is that it will be completed as soon as the promotion begins, leaving only a short period of time for the attempt. However, the offense remains at the experimental stage if there is a very minor, financially barely quantifiable claim on the service, e.g. if the perpetrator is discovered after a few meters.

Litigation and sentencing

The act is generally prosecuted ex officio as an official offense, so that the injured party does not need to file a criminal complaint . However, due to the reference in Section 265a (3) StGB to Section 247 StGB and Section 248 StGB, such an application is exceptionally necessary if the victim is a relative, a guardian or a carer or if the damage caused by the act is minor. While the former is the exception, the damage caused by fraudulent services is often of minor magnitude, so that a criminal complaint is often required.

Law competitions

According to paragraph 1 of the norm, the perpetrator is not punished under Section 265a of the Criminal Code if his act is threatened with a heavier penalty by another norm. The offense is therefore formally subsidiary to offenses with a similar direction of protection, i.e. property and property offenses, typically fraud ( § 263 StGB) and computer fraud ( § 263a StGB). For other offenses, such as trespassing ( § 123 StGB), counterfeit money offenses ( § 146 , § 147 StGB) and falsification of documents ( § 267 StGB), the fraudulence of benefits due to their other protective purpose can be considered unity .

criminology

Recorded cases of performance creep in the years 1987–2017.

The Federal Criminal Police Office annually publishes statistics on all criminal offenses reported in Germany, the police crime statistics . The entire federal territory has been covered since 1993. The statistics from 1991 and 1992 included the old federal states and all of Berlin. Earlier statistics only cover the old federal states.

The number of reported cases of stealth has risen sharply in the past. The majority of the acts, however, only caused minor financial losses. The resolution rate of the reported cases is consistently high with a level of almost 100%.

By far the most common form of fraudulent activity is dodging. The development of the number of cases is closely linked to the reporting behavior of the major transport companies. Due to the early completion of the offense, especially in this variant, the proportion of attempts is low.

Police crime statistics for fraudulent activity in the Federal Republic of Germany
recorded cases
year all in all per 100,000 inhabitants tries Clearance rate indicated cases
1987 72,805 119.1 385 (0.5%) 97.7%
1988 76,288 124.6 258 (0.3%) 98.1%
1989 79.009 128.0 277 (0.4%) 97.8%
1990 71.007 113.3 237 (0.3%) 98.0%
1991 78,260 120.4 200 (0.3%) 98.4%
1992 87,956 133.7 274 (0.3%) 98.6%
1993 108,576 134.1 321 (0.3%) 98.0%
1994 108,200 133.0 300 (0.3%) 98.0%
1995 108,618 133.2 246 (0.2%) 98.0%
1996 112,519 137.5 270 (0.2%) 98.1%
1997 120.131 146.5 347 (0.3%) 97.9%
1998 159,463 194.3 419 (0.3%) 98.2%
1999 146.264 178.3 462 (0.3%) 98.5%
2000 148.824 181.1 437 (0.3%) 98.3%
2001 158,407 192.6 468 (0.3%) 98.5%
2002 168,290 204.1 516 (0.3%) 98.5%
2003 176.019 213.3 420 (0.2%) 98.1%
2004 189,121 229.1 366 (0.2%) 98.2%
2005 192.930 233.9 352 (0.2%) 98.3%
2006 194.174 235.5 411 (0.2%) 98.7%
2007 207.194 251.7 431 (0.2%) 98.6%
2008 200.211 243.5 817 (0.4%) 98.3%
2009 220,746 269.2 716 (0.3%) 98.6%
2010 228.179 278.9 462 (0.2%) 98.8%
2011 246,944 302.1 516 (0.2%) 99.0%
2012 256,545 313.5 582 (0.2%) 99.2%
2013 238,547 296.2 594 (0.2%) 99.2%
2014 274,322 339.6 681 (0.2%) 99.3%
2015 279.144 343.8 711 (0.3%) 99.3%
2016 246.171 299.6 629 (0.3%) 99.1%
2017 245,696 297.7 408 (0.2%) 99.1%

Legal situation in other states

In Austria , the offense of fraudulent benefits is regulated in Section 149 of the Criminal Code. This standard deals with three forms of performance, which are also contained in the German standard: the performance of a machine, transport and the event or facility. In contrast to the German norm, according to § 149 StGB, the use of the latter two services requires deception about facts. When using the service of a machine, however, unauthorized access to the service is sufficient.

In Swiss criminal law , Article 150 of the Criminal Code contains a provision on stealth, the facts of which largely correspond to those of the German standard.

literature

  • Thomas Fischer : Criminal Code with subsidiary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 265a.
  • Martin Heger: § 265a . In: Kristian Kühl, Martin Heger: Criminal Code: Comment . 29th, revised edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 .
  • Uwe Hellmann : § 265a . In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  • Walter Perron: § 265a . In: Adolf Schönke, Horst Schröder, Albin Eser (eds.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  • Klaus Tiedemann: § 265a . In: Klaus Tiedemann, Bernd Schünemann, Manfred Möhrenschlager (eds.): Leipzig Commentary on the Criminal Code . 12th edition. tape 9 , sub-volume 1: §§ 263 to 266b. de Gruyter, Berlin 2012, ISBN 978-3-89949-786-1 .
  • Brian Valerius: § 265a . In: Bernd von Heintschel-Heinegg (Hrsg.): Beckscher Online Comment StGB , 30th Edition 2016.
  • Wolfgang Wohlers, Tilo Mühlbauer: § 265a . In: Wolfgang Joecks, Klaus Miebach (Hrsg.): Munich Commentary on the Criminal Code . 2nd Edition. tape 5 : §§ 263–358 StGB. CH Beck, Munich 2014, ISBN 978-3-406-60290-0 .

Web links

Individual evidence

  1. ↑ Wolfgang Wohlers, Tilo Mühlbauer: § 265a , Rn. 1. In: Wolfgang Joecks, Klaus Miebach (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 5 : §§ 263–358 StGB. CH Beck, Munich 2014, ISBN 978-3-406-60290-0 .
  2. ^ Dennis Bock : Criminal Law . Special part 2. Springer-Verlag , Berlin 2018, ISBN 978-3-662-54792-2 , p. 495 ( limited preview in Google Book Search [accessed on May 4, 2020] RGSt 68, 65).
  3. ↑ Wolfgang Wohlers, Tilo Mühlbauer: § 265a , Rn. 2. In: Wolfgang Joecks, Klaus Miebach (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 5 : §§ 263–358 StGB. CH Beck, Munich 2014, ISBN 978-3-406-60290-0 . Klaus Tiedemann: § 265a , Rn. 1. In: Klaus Tiedemann, Bernd Schünemann, Manfred Möhrenschlager (eds.): Leipzig Commentary on the Criminal Code . 12th edition. tape 9 , sub-volume 1: §§ 263 to 266b. de Gruyter, Berlin 2012, ISBN 978-3-89949-786-1 .
  4. ↑ BT-Drs. 13/8016 , p. 28.
  5. ^ Brian Valerius: § 265a , Rn. 2. In: Bernd von Heintschel-Heinegg (Hrsg.): Beckscher Online Commentary StGB , 30th Edition 2016.
  6. ↑ Wolfgang Wohlers, Tilo Mühlbauer: § 265a , Rn. 4. In: Wolfgang Joecks, Klaus Miebach (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 5 : §§ 263–358 StGB. CH Beck, Munich 2014, ISBN 978-3-406-60290-0 . Brian Valerius: § 265a , Rn. 2.2. In: Bernd von Heintschel-Heinegg (Hrsg.): Beckscher Online-Comment StGB , 30th Edition 2016. Uwe Hellmann: § 265a , Rn. 11. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (ed.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  7. ↑ Uwe Hellmann: § 265a , Rn. 14. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  8. ↑ OLG Stuttgart, judgment of October 19, 1962, 1 Ss 722/62 = monthly publication of German law 1963, p. 236.
  9. ^ Claus-Jürgen Hauf: fare dodging in modern mass traffic - punishable under § 265a StGB . In: Deutsche Richterzeitung 1995, p. 15 (19).
  10. ↑ Thomas Exner: Punishable "fare dodging" as a lesson in legal methodology . In: Juristische Schulung 2009, p. 990 (992). Thomas Fischer: Comment on OLG Stuttgart 1 St 635/88 . In: New Journal for Criminal Law 1991, p. 41.
  11. ↑ AG Hamburg, judgment of March 11, 1987, 127b Ds 24 Js 16/87 = Neue Zeitschrift für Strafrecht 1988, p. 221.
  12. ↑ Thomas Fischer : Penal Code with ancillary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 265a, Rn. 3. Wolfgang Wohlers, Tilo Mühlbauer: § 265a , Rn. 45. In: Wolfgang Joecks, Klaus Miebach (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 5 : §§ 263–358 StGB. CH Beck, Munich 2014, ISBN 978-3-406-60290-0 .
  13. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 33, marginal no. 10. Christina Putzke, Holm Putzke: fare dodging as creeping transport - for the method-appropriate interpretation of § 265 a StGB . In: Juristische Schulung 2012, p. 500 (501).
  14. ↑ Wolfgang Wohlers, Tilo Mühlbauer: § 265a , Rn. 8. In: Wolfgang Joecks, Klaus Miebach (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 5 : §§ 263–358 StGB. CH Beck, Munich 2014, ISBN 978-3-406-60290-0 .
  15. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 33, marginal no. 2.
  16. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 33, marginal no. 3.
  17. ↑ BGH, judgment of April 22, 1952, 2 StR 101/52 = monthly for German law 1952, p. 563. OLG Düsseldorf, judgment of October 29, 1998, 5 Ss 369-98 - 90-98 I = Neue Juristische Wochenschrift 1999, p. 3208 (3209).
  18. ↑ Uwe Hellmann: § 265a , Rn. 19. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  19. ^ Rudolf Rengier: Criminal Law Special Part I: Property offenses . 18th edition. CH Beck, Munich 2016, ISBN 978-3-406-68816-4 , § 16, Rn. 3. Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 33, marginal no. 5-6.
  20. ↑ OLG Karlsruhe, judgment of January 21, 2009, 2 Ss 155/08 = Neue Juristische Wochenschrift 2009, p. 1287 (1288).
  21. ^ Rudolf Rengier: Criminal Law Special Part I: Property offenses . 18th edition. CH Beck, Munich 2016, ISBN 978-3-406-68816-4 , § 16, Rn. 3.
  22. ↑ Mustafa Oğlakcıoğlu: A "black list" for the lawyer . In: Legal worksheets 2011, p. 588 (591).
  23. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 33, marginal no. 7th
  24. ↑ Uwe Hellmann: § 265a , Rn. 29. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (ed.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  25. ↑ OLG Karlsruhe, judgment of July 26, 2003, 3 Ws 134/02 = Neue Zeitschrift für Strafrecht 2004, p. 333 (334).
  26. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 33, marginal no. 13.
  27. ↑ Uwe Hellmann: § 265a , Rn. 31. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 . Klaus Tiedemann: § 265a , Rn. 44. In: Klaus Tiedemann, Bernd Schünemann, Manfred Möhrenschlager (eds.): Leipzig Commentary on the Criminal Code . 12th edition. tape 9 , sub-volume 1: §§ 263 to 266b. de Gruyter, Berlin 2012, ISBN 978-3-89949-786-1 .
  28. ^ BGH, judgment of May 13, 2005, 3 StR 128/03 = criminal defense lawyer 2004, p. 21.
  29. ↑ Thomas Fischer : Penal Code with ancillary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 265a, Rn. 18th
  30. ↑ Martin Heger: § 265a , Rn. 6a. In: Kristian Kühl, Martin Heger: Criminal Code: Comment . 29th, revised edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 .
  31. ↑ BGHSt 53, 122 ; approving Nikolaus Bosch: criminal fare dodging? - Limits to creeping performance . In: Juristische Arbeitsblätter 2009, p. 469 (470). BayOLG, judgment of July 4, 2001, 5 St RR 169/01 = criminal defense lawyer 2002, p. 429. OLG Hamburg, judgment of December 18, 1990, 2 a Ss 119/90 = Neue Zeitschrift für Strafrecht 1991, p. 587.
  32. ↑ BGHSt 53, 122 ; approving Nikolaus Bosch: criminal fare dodging? - Limits to creeping performance . In: Juristische Arbeitsblätter 2009, p. 469 (470).
  33. ↑ Karsten Gaede: The BGH confirms the criminal liability of the "simple black drive" - ​​wrongly and with problematic extensions. In: Online magazine for highest judicial jurisprudence on criminal law. February 2009, accessed November 11, 2016 .
  34. ^ Brian Valerius: § 265a , Rn. 21. In: Bernd von Heintschel-Heinegg (Hrsg.): Beckscher Online-Comment StGB , 30th Edition 2016.
  35. ↑ Thomas Fischer : Penal Code with ancillary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 265a, Rn. 5-5e.
  36. ↑ Klaus Tiedemann: § 265a , Rn. 36. In: Klaus Tiedemann, Bernd Schünemann, Manfred Möhrenschlager (eds.): Leipzig Commentary on the Criminal Code . 12th edition. tape 9 , sub-volume 1: §§ 263 to 266b. de Gruyter, Berlin 2012, ISBN 978-3-89949-786-1 . Martin Heger: § 265a , Rn. 6a. In: Kristian Kühl, Martin Heger: Criminal Code: Comment . 29th, revised edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 . Wolfgang Mitsch: Criminal Law, Special Part 2: Property Offenses . 3. Edition. Springer Science + Business Media, Berlin 2015, ISBN 978-3-662-44934-9 , pp. 450 .
  37. ↑ Mustafa Oglakcioglu: A "black list" for the lawyer . In: Legal worksheets 2011, p. 588 (589). Frederik Roggan: The current decision confessing dodging . In. Jura 2012, p. 299 (302-303). Klaus Ellbogen: The criminal liability of simply “driving in the black” . In: Juristische Schulung 2005, p. 20 (21).
  38. ↑ BVerfG, judgment of February 9, 1998, 2 BvR 1907/97 = Neue Juristische Wochenschrift 1998, p. 1136.
  39. ↑ Uwe Hellmann: § 265a , Rn. 38-39. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  40. ^ Rudolf Rengier: Criminal Law Special Part I: Property offenses . 18th edition. CH Beck, Munich 2016, ISBN 978-3-406-68816-4 , § 16, Rn. 7th
  41. ^ KG, judgment of March 2, 2011, 1 Ss 32/11 = Neue Juristische Wochenschrift 2011, p. 2600.
  42. ↑ Confessing dodger: "I drive black" T-shirt does not protect against punishment . gratis-urteile.de, February 25, 2010.
  43. ↑ https://www.kostenlose-urteile.de/AG-Eschwege_71-Cs-9621-Js-1403513_Schwarzfahrer-Tragen-eines-Zettels-mit-Aufschrift-Ich-fahre-umsonst-schliesst-Strafbarkeit-wegen-Erschleichens-von -Services-from.news20745.htm
  44. ↑ Walter Perron: § 265a , Rn. 11. In: Adolf Schönke, Horst Schröder, Albin Eser (eds.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 . Rudolf Rengier: Criminal Law Special Part I: Property Offenses . 18th edition. CH Beck, Munich 2016, ISBN 978-3-406-68816-4 , § 16, Rn. 7th
  45. ^ Brian Valerius: § 265 , Rn. 8. In: Bernd von Heintschel-Heinegg (Ed.): Beckscher Online Commentary StGB , 30th Edition 2016.
  46. ↑ Uwe Hellmann: § 265a , Rn. 40. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  47. ↑ Mustafa Oğlakcıoğlu: A "black list" for the lawyer . In: Legal worksheets 2011, p. 588 (590).
  48. ↑ Uwe Hellmann: § 265a , Rn. 44. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 . Thomas Fischer : Criminal Code with subsidiary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 265a, Rn. 24.
  49. ↑ Uwe Hellmann: § 265a , Rn. 45. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  50. ↑ Kristian Kühl: Criminal Law General Part . 7th edition. Vahlen, Munich 2012, ISBN 978-3-8006-4494-0 , § 5, Rn. 43.
  51. ↑ Uwe Hellmann: § 265a , Rn. 46. ​​In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  52. ↑ Tamina Preuß: Practice and exam-relevant questions of "driving illegally" - Part 1 . In. Journal for Legal Studies 2013, p. 257 (267).
  53. ↑ Uwe Hellmann: § 265a , Rn. 47. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  54. ^ Brian Valerius: § 265 , Rn. 24. In: Bernd von Heintschel-Heinegg (Hrsg.): Beckscher Online Comment StGB , 30th Edition 2016. Thomas Fischer : Criminal Code with ancillary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 265a, Rn. 28.
  55. ↑ OLG Frankfurt, judgment of July 20, 2010, 1 Ss 336/08 = Neue Juristische Wochenschrift 2010, p. 3107 (3108).
  56. ↑ Wolfgang Wohlers, Tilo Mühlbauer: § 265a , Rn. 3. In: Wolfgang Joecks, Klaus Miebach (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 5 : §§ 263–358 StGB. CH Beck, Munich 2014, ISBN 978-3-406-60290-0 .
  57. ↑ Uwe Hellmann: § 265a , Rn. 50. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 . Walter Perron: § 265a , Rn. 14. In: Adolf Schönke, Horst Schröder, Albin Eser (eds.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  58. ↑ Uwe Hellmann: § 265a , Rn. 51. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (ed.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 . Thomas Fischer : Criminal Code with subsidiary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 265a, Rn. 30th
  59. ↑ a b PKS time series 1987 to 2017. (CSV) (No longer available online.) Federal Criminal Police Office, May 8, 2018, archived from the original on July 14, 2018 ; accessed on October 10, 2018 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.bka.de
  60. ↑ Police crime statistics. (No longer available online.) Federal Criminal Police Office, archived from the original on April 23, 2018 ; accessed on September 23, 2017 . Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.bka.de
  61. ↑ Wolfgang Wohlers, Tilo Mühlbauer: § 265a , Rn. 3. In: Wolfgang Joecks, Klaus Miebach (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 5 : §§ 263–358 StGB. CH Beck, Munich 2014, ISBN 978-3-406-60290-0 .
  62. ↑ § 149 StGB (Austria)
  63. ↑ Article 150 StGB (Switzerland)
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