Fraud (Switzerland)

Fraud ( French Escroquerie , Italian Truffa ) is a criminal property offense in which the perpetrator deliberately deceives the victim by pretending or suppressing facts, with the intention of unlawful enrichment , that he damages himself or a third party to the property and thus inflicts material damage .

Legal text

Art. 146 (marginal title: fraud)

Anyone who intends to unlawfully enrich himself or someone else, fraudulently misleads someone by pretending or suppressing facts, or fraudulently reinforces him in an error and thus determines the erring person to behave in a way that damages himself or someone else's property punished with imprisonment of up to five years or a fine.
If the offender acts commercially, he will be punished with imprisonment of up to ten years or a fine not less than 90 daily rates.
Fraud to the detriment of a relative or family member will only be prosecuted upon request.

comment

As in Germany, the elements of deception about facts and the intention to gain enrichment are assumed. In addition, malice is required in Swiss criminal law . Regarding the elements of the offense in detail:

illusion

Cheating presupposes that a person is deceived. So anyone who, for example, withdraws money from a machine without authorization is not committing fraud. In order to close this gap, the offense of misuse of a data processing system (Art. 147) was introduced.

Only deception, i.e. the effect on the victim's imagination, is a constituent element. A change of facts so that they no longer correspond to the (already made) idea of the victim is not a delusion.

Voluntary action by the victim

Fraud presupposes that the damage is caused by the victim himself and that the victim acts of his own free will and only on the basis of the deception. It is irrelevant whether the victim of deception harms himself or a third party through his behavior.

The victim does not necessarily have to actively dispose of property; someone who, due to deception, fails to make a legitimate claim (determined to behave ) is also cheated .

Factual error

The victim must be subject to a factual error. It is irrelevant whether the error is caused by the deception or whether the victim is only reinforced in an already existing error, if this reinforcement is the reason for the victim's self-harm. In the second variant, however, the offender must be active on the notion of the victim act , the mere exploitation of an existing error is not a scam. ( Usury may then come into consideration.) The perpetrator only has an obligation to provide information if he is a guarantor of the victim .

Facts can also be so-called internal facts , especially thoughts of the perpetrator. A classic inner fact , for example, is a lack of willingness to pay. However, it is necessary that the will to pay was already absent when the victim was induced to dispose of the property under the pretense of this willingness to pay. If the perpetrator decides later, contrary to his original intention, not to meet his payment obligations, fraud is ruled out. In practice, this can lead to difficulties in providing evidence. An inability to pay at the time of the offense is generally viewed as an indication of a lack of willingness to pay.

damage

The victim or a third party must be damaged in the property. A waiver of legitimate claims is also a loss of property.

The practice already assumes damage to property if this is merely endangered. So anyone who, for example, obtains a loan by providing collateral that is not available is also committing fraud if he repays the loan, since the lender's assets were jeopardized for a short time by the lack of collateral.

Intention to enrich

There must be an intention to enrich. Mere property damage without the intention of enrichment is not fraud, but fraudulent property damage (Art. 151). The intention to enrich in favor of a third party, who was not involved in the act, also fulfills the criteria.

Deceit

All of the previously mentioned features are also mentioned in German law . In addition, Swiss criminal law requires that the deception must be fraudulent . In practice, this additional requirement often turns out to be the key problem.

The idea behind this additional requirement is that no criminal protection should be given to “those who would have protected themselves with a minimum amount of attention” or “ could have avoided the error with a minimum of reasonable caution ” (BGE 72 IV 128 or 99 IV 78). This corresponds to the principle of subsidiarity of criminal law: In the event of a mere breach of contractual obligations, civil law is responsible.

Here, Swiss law takes a middle position between French and German law. French law defines the term fraud very narrowly, assuming special tricks (“manœuvres frauduleuses”, “mise en scène”). German law takes the opposite extreme position. Any lie that the opposing party falls for is sufficient here. The reason for the Swiss compromise solution is historical: Before the introduction of the Swiss Criminal Code, criminal law was cantonal, with the German-speaking cantons based on German law and the French-speaking cantons on French law. (BGE 72 IV 12f).

It is difficult to differentiate between criminal fraudulent misrepresentation and unpunished simple lie (which can also be in writing).

Fraudulent information in the criminal sense is initially considered to be false information that cannot be verified or can only be verified with particular difficulty. If the review is both possible and reasonable , malice is ruled out. It also depends on the person of the victim: For example, one should be able to expect an investment banker to see through a dubious financial construct more easily than a layperson. As a result, this can lead to fraudulent behavior being affirmed for the same behavior in one victim, but not in another. The point is that the frivolous and lazy should not be protected, but the stupid and weak should be protected .

If the perpetrator takes advantage of a special position of trust, the reasonableness of a review is usually denied and fraudulent is assumed.

Irrespective of the verifiability, malice is always assumed if the perpetrator erects an entire building of lies in which a large number of lies are so cleverly coordinated that even a critical victim can be deceived.

Malice in the attempt

There is no attempted malice. If the deception is seen through in good time, it must first be checked whether it would have been classified as fraudulent if the fraud had succeeded. Only if this question is answered in the affirmative is there an attempted fraud. The opposite view would have the absurd consequence that a deception maneuver, if successful, would not be punished due to a lack of malice, but the same maneuver would be punished for attempted malice if it failed.

Web links

Wiktionary: Fraud - explanations of meanings, word origins, synonyms, translations

Wikiquote: Fraud Quotes

A campaign on the subject of fraud in Swiss crime prevention

Individual evidence

↑ Art. 146 StGB French.
↑ Art. 146 StGB Italian.
↑ Art. 146 StGB ( SR 311.0)
↑ The dissertation The element of the fraudulent offense in fraud by Willi Wismer (Diss. Zurich 1988, Shaker Verlag 1996) is currently the most comprehensive treatise on the element of fraudulent behavior.
^ Gunther Arzt, Basel Commentary, Criminal Code I, Art. 146 StGB No. 51
↑ Cassation Court of the Swiss Federal Court , judgment of November 6, 2006, 6S.168 / 2006 (“Nigeria-Connection”) on the website of the Federal Court

[1] Art. 146 StGB French.

[2] Art. 146 StGB Italian.

[3] Art. 146 StGB ( SR 311.0)

[4] The dissertation The element of the fraudulent offense in fraud by Willi Wismer (Diss. Zurich 1988, Shaker Verlag 1996) is currently the most comprehensive treatise on the element of fraudulent behavior.

[5] Gunther Arzt, Basel Commentary, Criminal Code I, Art. 146 StGB No. 51

[6] Cassation Court of the Swiss Federal Court , judgment of November 6, 2006, 6S.168 / 2006 (“Nigeria-Connection”) on the website of the Federal Court