Theft (Germany)

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Theft is a criminal offense in Germany's criminal law , which is regulated in Section 242 of Section 242 of the Special Part of the Criminal Code (StGB) . The theft is one of the property crimes . The right of the detainee to own and use his property is protected.

Section 242 of the Criminal Code makes it a punishable offense to remove someone else's movable property with the intention of unlawfully appropriating it to yourself or to a third party. A removal is a breach of strangers and the establishment of new custody. If the theft occurs against a person with simultaneous threat of violence, it is a robbery .

A prison sentence of up to five years or a fine can be imposed for the theft . Theft offenses make up around 40 percent of all criminal offenses registered by the police and thus represent the most significant group of offenses in terms of numbers. At less than 30 percent, the clearing-up rate of these offenses is below average compared to other crime groups.

In the past three decades, the number of thefts has more than halved. This decline follows the trend that can be observed in all western countries. Theft is often mentioned in connection with internal security .

Legal position

Since its last amendment on April 1, 1998, Section 242 StGB has read as follows:

(1) Anyone who takes away another person's movable property from another person with the intention of unlawfully appropriating the property to himself or to a third party will be punished with imprisonment for up to five years or with a fine.

(2) The attempt is punishable.

Due to the standard range of penalties of up to five years' imprisonment or a fine, theft is a misdemeanor under Section 12 (2) of the Criminal Code .

Section 242 of the Criminal Code protects the right of the owner of a thing to own and use it unhindered. In addition, according to the prevailing view in jurisprudence, it protects custody .

History of origin

Illustration of the Constitutio Criminalis Carolina

Medieval penal codes only considered theft to be the secret removal of other people's things. If the perpetrator did not act in secret, he committed a robbery on the other hand. The Constitutio Criminalis Carolina of 1532 contained numerous facts that regulated different forms of theft.

The current state of theft is largely based on the state of theft of the Reich Penal Code , which came into force on January 1, 1872. According to this, it was a criminal offense to take someone else's moveable property away from someone in order to illegally appropriate it.

After the collapse of the German Reich , Section 242 of the Criminal Code was adopted unchanged in the Criminal Code of the Federal Republic of Germany. The first amendment to Section 242 of the Criminal Code took place within the framework of the Criminal Law Reform Act of 1969. In this context, the theft, which previously only provided for imprisonment, was expanded to include the possibility of imposing a fine.

The theft was further changed by the Sixth Criminal Law Reform Act of 1998. In its framework, the subjective offense of theft was expanded: while it was previously necessary that the perpetrator wanted to appropriate the object of the crime himself, since the new version the will to do the thing is sufficient To assign to third parties.

Objective fact

Foreign movable thing

The subject of the theft is a movable property of another . According to Section 90 of the German Civil Code (BGB), one thing is a physical object. In this respect, the criminal law understanding of the technical term coincides with the civil law . However, the criminal law term goes beyond the civil law term. For example, unlike in civil law, animals also represent things. Factual elements that are not legally capable in civil law themselves have material quality in criminal law, provided they can be separated from the main thing for the purpose of removal. This applies, for example, to the windows of buildings, to grass in a pasture and grain in a field.

Due to the lack of physicality, electrical energy is not a thing. The same applies to radiation, electronically or magnetically stored data and bank deposits . The human body is also not a thing, since it would be incompatible with one's human dignity ( Art. 1 Paragraph 1 of the Basic Law ) to view it as an object; it is protected by other regulations. Parts that are removed from the body or separated from it, however, acquire material quality through the separation from the body.

The human corpse is also considered a thing . As a rule, however, there is no property in this, so that it ultimately does not represent a suitable object of crime. Because something has to be foreign to the perpetrator in order for it to be the subject of a theft. This applies if it is marketable, not in sole ownership and not ownerless . These characteristics are determined according to civil law assessments.

A thing is marketable if its ownership can be justified. This is not possible with river water, for example. It is irrelevant here whether ownership may be established in the thing so that, for example, prohibited narcotics can also be stolen. Since a criminal offense because of the criminal certainty bid ( Art. 103 , paragraph 2 of the Constitution) may not be retrospectively justified, remain civil retroactivity fictions , such as the effect of a challenge ( § 142 BGB), an authorization ( § 184 BGB) or Erbschaftsausschlagung ( § 1953 BGB), irrelevant for the criminal law assessment of the foreignness of a thing.

Ownerless is something that has no owner. This is the case with wild animals, for example. Ownerlessness also arises through dereliction ( Section 959 BGB). For this it is necessary that the previous owner shows that he wants to give up his ownership of the thing. This is the case, for example, when the item is presented for collection by a waste disposal company. The situation is different, however, if the previous owner does not want to give up his property unconditionally, but only for a specific purpose. So the strangeness does not disappear, for example, that someone provides an item for collection as a donation on the roadside. There is also no dereliction if the owner specifically wants to destroy the thing. This comes into consideration , for example, with girocards .

Movable is something that can be removed by the perpetrator. This also applies to things that first have to be moved for the purpose of theft, such as grass growing on the ground.

Removal

The act of theft is the removal of someone else's movable property. Withdrawal is the breach of strangers and the establishment of new, not necessarily the perpetrator's own, custody.

Existence of someone else's custody

Custody is the actual dominion of a person over a thing based on a natural will to rule. In part, it corresponds to property under civil law , in particular to direct possession within the meaning of § 854 BGB. However, civil law fakes possession, for example in the case of heir property ( Section 857 of the German Civil Code) and of servants ( Section 855 of the BGB). These fictions do not apply to criminal law because of the specificity requirement .

The assessment of whether someone has physical control is largely based on how people see things. An essential feature of property control is the possibility of exercising power over the matter under normal circumstances without significant obstacles. This is usually the case when the matter is within the custodian's territorial control. This area is known as the custody sphere. However, custody also exists where a thing is assigned to a person according to the public opinion despite the physical distance of the owner. This is the case with the owner of a vehicle parked on the street or the absent owner of an apartment.

Custody requires the will to rule over something. Whoever knows that he is entitled to rule over a thing has this at his disposal. It is a natural will that is independent of the legal capacity. In the case of legal persons , due to a lack of will, only natural persons can be held in custody, for example the managing director . It is sufficient if the will is limited to establishing custody of all objects within a separate sphere of custody. It is therefore not necessary that an awareness of a particular thing be acquired. For example, objects left behind on public transport do not usually become cautious with the physical distance of the previous person in custody. Instead, the operator establishes custody of them, since he has a will to justify custody of all objects lost in his sphere. The will to control does not have to be permanent; it is sufficient if it is present when the arrest is given.

If a third party enters the custody sphere of another, he establishes his own sphere of custody within this sphere, which in legal science is called a custody enclave or a taboo sphere. This includes, for example, the clothing on the body. Custody enclaves are of practical importance, especially when small items are stolen, for example in department stores. If the perpetrator takes a small thing, for example a ring, and hides it in his pocket, this already results in the breach of custody, as this makes it much more difficult for the owner to access the ring.

In order to assess the custody conditions in the case of lost objects, jurisprudence differentiates according to whether the object was lost in its own spatially delimited area of ​​control, a foreign area of ​​control or outside a sphere of custody. The former is the case, for example, in your own home. In such cases, the owner remains in custody of the property, as traffic still assigns it to the owner of the apartment. The latter applies, for example, to the loss of the item in a public institution. Here, the custody of the thing is transferred to the owner of the foreign custody sphere, since he keeps lost items for the owner. In the third case, the object would become custody if the previous person in custody had moved so far away from the object that it could no longer be assigned to him by traffic.

Change of custody

General

The change of custody is carried out through the breach of foreign custody and the establishment of new custody by the perpetrator.

A breach of custody presupposes that the perpetrator removes the custodian's access without or against his or her will. The re-establishment of custody occurs through the attainment of actual control over the matter. Both times often coincide.

In order to concretize the time of the change of custody, jurisprudence developed different approaches: According to one approach, the simple touching of the thing was decisive (contraction theory), according to another, the removal of the prey (ablation theory), according to another, the recovery of the prey (illation theory). These views are now considered obsolete because they do not meet practical needs. The prevailing view today is based on the apprehension theory. According to this, the change of custody is basically carried out by taking the prey. This theoretical controversy is of little practical importance, however, as the decisive yardstick for the assessment of custody conditions is the view of the people. According to this, the perpetrator can only gain physical control of small objects by taking them. On the other hand, he first has to remove a bulky object from the sphere of influence of the previous detainee, since according to the general public it is only at this point in time that he obtains sole physical control. This applies, for example, to motor vehicles in which they are only removed when they are driven away.

It is controversial whether and how electronic security labels, which are often used in department stores, affect when they are removed. Some voices see this as an obstacle that prevents removal within the department store. According to this, the breach of custody can only be completed when leaving the business premises. According to the opposite view, this only applies as long as the perpetrator has not hidden the matter in a custody enclave.

Custody can be exercised by several people of equal rank. In such a case, one person held in custody can break the custody of another and thus commit a removal. Joint custody can also be exercised in a relationship of superiority and subordination. Here, the subordinate detainee is subject to the instructions of the superordinate detainee with regard to the handling of an item. This is the case, for example, within employment relationships . The will of the superior custodian takes precedence over that of the subordinate custodian, so he cannot break his custody. In the opposite case, in which the subordinate takes an item against the will of the superior, this can, however, be a removal.

The unpunished relaxation of custody is to be distinguished from the breach of custody. Such is the case if the person in custody still has access to the item, but it is difficult to exercise it. In many cases, loosening of custody is the preliminary stage to breaking custody. If, for example, the item stolen in the department store is too large to be hidden in the offender's clothing and the perpetrator is therefore visibly carrying the item with him, a break will only occur when leaving the department store. In the period between taking the item with you and leaving the department store, custody was relaxed, as the department store owner would first have to take the thing from the perpetrator.

Consent excluding the factual

Since the victim's lack of or conflicting will is a prerequisite for the offense, there is the possibility of an agreement excluding the offense . If this is the case, the perpetrator acts with the will of the victim, he does not commit removal.

Consent can be given if the victim notices a removal but does not prevent it. A distinction must be made here between two constellations. If it takes precautions to observe the thief during the act, for example by installing a video camera, this does not in principle constitute consent to the change of custody, as the monitoring is only for evidence purposes. The situation is different in cases of the thief trap. Here the victim prepares objects to be stolen in order to convict the thief with the help of them. The change of custody is necessary for the transfer of the perpetrator, which is why it takes place with the consent of the authorized person.

Consent can be given at vending machines

The consent can be linked to a condition precedent . Such is often the case with vending machines. Here the right to inspect the item issued by the machine is made dependent on the correct operation of the machine. If the offender acts contrary to this condition, for example by using counterfeit money , there is a breach of custody.

The consent to the change of custody is also important in the case of unauthorized refueling at self-service filling stations. A distinction can be made between several case constellations: If the perpetrator has decided not to pay from the start and then pretends to be an honest customer, assuming that he is being observed, he pretends to be fraudulent or attempted fraud based on the intended deception ( Section 263 StGB) punishable by law. If the perpetrator assumes that he will not be seen by others, in the absence of an act of deception, the offenses of appropriation theft and embezzlement are relevant. Whether there is a breach of custody in this constellation is disputed in jurisprudence. According to the prevailing opinion, by opening the self-service filling station, the petrol station operator gives the customer a general consent to the withdrawal of petrol, as long as the petrol pump is properly operated. The opposite view assumes that consent is not only linked to proper service, but also to proper payment and is based on a purely internal reservation. In the third constellation, the perpetrator decides not to pay until after refueling. According to both views, only embezzlement comes into consideration, as the transfer of custody took place with the consent of the operator. In addition, criminal liability for fraud in accordance with Section 263 (1) StGB is possible if the perpetrator deceives petrol station employees after the refueling process in order not to be exposed and to leave the petrol station without paying the purchase price for the fuel removed.

ATM

Some voices also affirm a breach of custody if someone withdraws money from an ATM using a foreign or forged card . The money is transferred from the bank to the withdrawing party on the condition that the card user is also the account holder. If an unauthorized person withdraws money, there is a breach of custody due to the lack of consent. The prevailing opinion in this case denies theft, however, since the bank's reservation that the banknotes only be held by an authorized person does not manifest itself objectively. If the perpetrator uses the machine properly, he is not liable to prosecution for theft, but possibly for computer fraud ( Section 263a StGB). The fact that the breach of custody is observed does not result in an agreement excluding the offense. In the past, however, the case law only accepted this if the perpetrator could not be prevented from being taken away despite observation; Otherwise he would show that he was in agreement with the change of custody, so that the perpetrator could possibly make himself liable for attempted theft. However, this differentiation is now no longer felt to be appropriate, since it cannot be inferred from the mere failure to intervene that the person in custody is in agreement with the change of custody.

Differentiation from theft and fraud

The offenses of theft and fraud ( Section 263 of the Criminal Code) contain elements of the offense that are mutually exclusive: While the perpetrator of a theft damages his victim by interfering with his property by taking away the victim, in the case of fraud he misleads the victim into himself to harm. The theft is therefore an offense against third parties, whereas fraud is a self-harm. Theft and fraud are therefore mutually exclusive. In some cases, the delimitation of the two offenses in legal practice proves difficult. This applies in particular to triangular fraud and trick theft .

If, for example, the perpetrator uses deception to induce a third party to surrender the victim's item, this can be both triangular fraud and indirect theft ( Section 25 (1), first sentence, alternative 2 StGB). In order to differentiate between the two offenses, two approaches have essentially emerged in legal science. The one, which is called the authority theory, focuses on the legal authority of the editor. If he is authorized to give away, his will is decisive in assessing the removal. Since he surrenders the matter voluntarily, there is no opposing will, so that there is no removal and therefore no theft. Instead, fraud is possible. If, on the other hand, he is not authorized to hand the matter over to the perpetrator, the will of the person entitled is decisive. Since the latter agrees to his loss of custody, there is a removal that the perpetrator carries out with the help of the deceived person through indirect perpetration. The second approach is based on whether there is a real closeness between the deceived and the victim. If the deceived person is closer to the victim than the perpetrator, for example as a family member or employee, it is fraud. If, on the other hand, he is closer to the perpetrator, for example as an accomplice, it is a case of theft.

In trick theft, the victim hands over or leaves something to the perpetrator because the perpetrator fakes a situation in which the victim cannot recognize the removal as such or in which he or she believes that the handover is legal or that resistance to it is pointless. Although an asset is given away, the perpetrator who takes the asset commits a removal and thus a theft, as the victim loses custody against his will. Instead of the act of taking away, there is an involuntary giving away due to deception or surprise. It is therefore a case of theft, for example, if the perpetrator hides goods among others in a self-service shop in order to smuggle them past the checkout.

Subjective fact

Intent

Pursuant to Section 15 of the Criminal Code, criminal liability for theft requires that the perpetrator acts with intent with regard to all elements of the offense. Any intent is sufficient. The perpetrator must therefore at least have knowledge of the objective characteristics of the offense and accept the occurrence of the offense . It is not necessary that the intent of the perpetrator on a certain prey is concretized; it is sufficient if he decides at the beginning of the act to take away objects worth stealing.

The feature of foreignness is a normative factual feature , the content of which results from legal evaluations. The perpetrator does not have to fully understand this; it is enough if he realizes that it at least belongs to someone else too.

Factual errors , which according to § 16 sentence paragraph 1 shall keep 1 of the Criminal Code for intentional exclusion, are, in particular, if the perpetrator assumes erroneously that a cause is not foreign. If there is an agreement that excludes the offense, the offender must be aware of this, otherwise he is liable to prosecution for attempting.

Purpose of appropriation

Another subjective characteristic of the theft is the intent to acquire . This characteristic represents an excessive internal tendency , since no element of the objective factual element corresponds to it. The intention of appropriation consists of the intention of appropriation and the intention of expropriation.

The conditions under which an appropriation exists has long been controversial in law. The dispute revolves around the question of what can be considered an object of appropriation. Voices in the older legal literature assumed that this only applies to the matter itself. According to this, an appropriation exists if the perpetrator wants to presume at least temporarily owner-like power over the thing. Other voices assume that the value of the thing represents the object of the appropriation. According to the prevailing view today, which is called the theory of unification, the perpetrator may want to appropriate both the material substance and the value embodied in the thing. According to this, the perpetrator intends an appropriation if he wants to incorporate the thing or its value at least temporarily into his property. This is lacking if the perpetrator only aims to withhold another person's property or to damage that person.

There is intent to expropriate if the perpetrator at least approves of the fact that the owner can no longer exercise his property rights. This feature distinguishes theft from the generally unpunished presumption of use . Such is the case if the perpetrator temporarily appropriates a foreign object, but later wants to return it to his victim. Such presumption of use is only punishable in two cases: the unauthorized use of a vehicle ( § 248b StGB) and the presumption of pawns by a public pawnbroker ( § 290 StGB). However, theft and no presumption of use exist if the perpetrator plans to return an item to the victim that has been significantly reduced in value. This was affirmed by the case law, for example, in a case in which the perpetrator took a book from a bookstore, read it and returned it in a read state.

The offender must act with the intention of appropriation at the time of the removal. If he only makes the decision to appropriate it after the item has been removed, there is therefore no theft. (The act is still unlawful, e.g. embezzlement.)

Illegality of the intended appropriation

A criminal liability for theft presupposes that the appropriation sought by the perpetrator is unlawful and that he also acts with intent in this regard. An appropriation that contradicts the ownership structure is illegal. This is not the case if the perpetrator has an enforceable claim to transfer of ownership of the object, for example from a sales contract . According to the prevailing view in jurisprudence, the claim must relate to the concrete thing that the perpetrator takes away; a claim to the transfer of ownership of a thing from a material type is therefore not sufficient. The illegality also does not apply if there is a justification in favor of the perpetrator, e.g. self-help ( Section 229 BGB).

If the perpetrator wrongly assumes that the appropriation is not unlawful, for example because he believes he has a claim, he is in a factual error . Therefore, in accordance with Section 16 (1) sentence 1 of the Criminal Code, his intent and thus his criminal liability for theft do not apply.

Ownership of stolen goods

In principle, the thief does not acquire ownership of the stolen item; the stolen remains the owner and thus retains the right to get the stolen item back - he does not have to settle for financial compensation. exceptions are

  • if the stolen property has meanwhile become an immovable thing, and making it movable again would mean an unreasonable expense - if, for example, a stolen sack of cement was used;
  • when the stolen property has been converted and no longer exists - for example, when stolen hay bales have been fed to cows.

In these cases, the stolen person has to settle for another (mostly financial) compensation.

Depreciation, consequences of theft

In the case of time-bound or perishable goods which may have become worthless in the meantime, the owner can still demand the return of the stolen goods; In addition, he is entitled to compensation for the decrease in value / becoming worthless (example: stolen theater tickets; food that has since gone bad).

In principle, the thief must bear all (financial) consequences that can be traced back to the theft. In addition to the return of the stolen property or, if applicable, a corresponding financial repayment, this includes above all compensation for a decrease in value; but also loss of income, legal and litigation costs, expense allowances, etc.

Litigation and sentencing

Basically, theft is an official offense , which is why criminal prosecution is possible without filing a criminal complaint from the injured party. According to Section 248a of the Criminal Code, however, theft can only be prosecuted upon application if the theft object is of low value. This is judged by its objective market value. According to the prevailing opinion in jurisprudence, the threshold to low value is 25 €. Another exception to the criminal complaint requirement is contained in Section 247 of the Criminal Code. According to this, a criminal complaint is required if the act is directed against a relative , a guardian or a supervisor . The aim of this regulation is to avoid disrupting personal relationships by intervening ex officio.

The theft is complete when the perpetrator has broken someone else's custody and established a new one. In the opinion of the Federal Court of Justice, however, a complete theft does not exist if the perpetrator inadvertently takes something other than the one he wanted with him, since he is acting with no intention of appropriation with regard to what was actually taken away. According to a counter-opinion represented in the literature, this error is, however, irrelevant, since it is sufficient for the realization of the facts that the perpetrator takes away a foreign thing.

Termination occurs when the perpetrator has secured the newly established custody. This is the case, for example, when the perpetrator has brought his prey into his hiding place. Once the offense has been completed, according begins § 78a of the Criminal Code, the limitation period . According to Section 78 Paragraph 3 Number 4 StGB, this is five years.

Attempting the theft is a punishable offense. It is true that Section 242 (1) of the Criminal Code is merely an offense, so that the criminal liability of the attempt does not yet result from Section 23 (1) of variant 1 of the Criminal Code. Section 242 (2) of the Criminal Code, however, expressly orders criminal offenses against attempts. An act of theft reaches the experimental stage as soon as the perpetrator immediately starts to take it away.

According to Section 245 of the Criminal Code, a court can order conduct supervision in addition to imprisonment in the context of criminal proceedings for theft .

Particularly serious case of theft (§ 243 StGB)

Section 243 of the Criminal Code regulates the particularly serious case of theft. This is characterized by the fact that the perpetrator realizes more injustice than simple theft. The standard contains seven rule examples , the presence of which indicates a particularly severe case.

Rule examples

A particularly serious case is usually when the perpetrator breaks into an enclosed room, gets in, enters with the wrong key or hides in such a room. Here, the perpetrator uses additional criminal energy to enable the removal. A break-in occurs when the perpetrator gets inside by using force, for example by breaking open a door. When getting in, the perpetrator renounces the use of force and instead uses an unusual route to enter the premises with the use of skill. This is the case, for example, when climbing through a skylight. The perpetrator realizes the intrusion variant when he uses either a forged key or a genuine key that he is not authorized to use. For example, a shoplifter who locks himself up in a shop to steal after the shop closes is hidden.

As a rule, a particularly serious case is also present when the perpetrator takes away an item that is specially secured against removal by a locked container or other protective device. Because here the perpetrator steals something that has a special value for his victim. A protective device is an artificial device which at least also serves the purpose of making it considerably more difficult to remove an object. Examples include immobilizers, safety chains and locks. Security labels, however, are not recorded, as they do not make the change of custody more difficult, but only make it easier for the perpetrator to be traced.

Another example of the rule is commercial theft. A person who is not only a temporary source of income from repeated thefts acts commercially.

A serious case is also regularly present when the perpetrator steals something that is of particular importance for religious reasons. In such cases, the perpetrator disturbs the religious peace and takes advantage of the fact that the property is usually comparatively weakly protected against theft. This example of the rule includes, for example, relics , images of saints and votive tablets . The object of the crime must be in a place dedicated to worship. This also includes mundane outbuildings, such as a sacristy .

It is also usually a serious case if the perpetrator steals an object that is of importance for science, art, history or for technical development and is in a public exhibition or a generally accessible collection. Here the perpetrator seizes a particularly important object, which is comparatively unprotected due to its accessibility.

Furthermore, it is usually a particularly serious case if the perpetrator takes advantage of helplessness, an accident or a general danger in the act. Here he behaves in a particularly reprehensible manner, while the victim can only oppose the removal to a limited extent. The rule example is fulfilled, for example, if the perpetrator steals from an accident victim or a helper at an accident location.

After all, there is usually a particularly serious case when the perpetrator steals a weapon. The increased severity of the crime results from the dangerousness of the stolen object.

Inferiority clause

According to Section 243 (2) of the Criminal Code, a particularly serious case may only be assumed in cases of the theft of a weapon if the object of the crime is of low value. The inferiority is measured according to the objective market value of the thing; the value limit corresponds to that of § 248a StGB.

It is controversial in jurisprudence whether recourse to the inferiority clause is only possible in cases in which the perpetrator acts with intent with regard to the inferiority clause. The overwhelming opinion affirms this with reference to the term “relates” in the facts. In addition, the act only has a minor character if the perpetrator deliberately takes away something of low value. The opposite view argues that if the perpetrator made a mistake about the value of the thing, either the wrongdoing or the wrongdoing of a particularly serious case of theft is missing, which is why only punishment for simple theft is required.

attempt

It is controversial in jurisprudence whether § 243 StGB can be used if the act is merely attempted. Several constellations can be distinguished:

There is agreement that the rule example can be taken into account if the perpetrator completes a rule example and attempts a theft. This is the case, for example, if the perpetrator breaks into a safe but does not find anything there. In this case, there is an attempted theft in a particularly serious case.

The case constellations in which the rule example does not reach completion are controversial. For example, if the perpetrator detects that a safe is unlocked when breaking into it and then removes its contents, he will complete a theft, whereas the rule example does not go beyond the experimental stage. If the perpetrator tries to break into the safe, but fails and then lets go of him, neither theft nor the rule example are completed. In these cases, Section 22 of the Criminal Code gives cause for doubt that the standard example can be taken into account. Section 22 of the Criminal Code provides for the possibility of an attempt only in the case of offenses, but not in the case of penalties such as Section 243 of the Criminal Code. Nevertheless, even in these cases, some legal scholars, including case law, consider it possible to take the standard example into account. They argue that the perpetrator, as in the case of an offense, can immediately begin to implement a rule example. In addition, the conversion of Section 243 of the Criminal Code from a qualification to a rule of sentencing within the framework of the First Criminal Law Reform Act was not intended to limit the scope of criminal liability. However, this is countered by the fact that the unambiguous wording of Section 22 of the Criminal Code is disregarded and a prohibited analogy is made to the detriment of the perpetrator.

Theft with weapons; Gang theft; Home burglary (Section 244 StGB)

Section 244 of the Criminal Code provides certain types of theft with a higher threat of punishment. These include stealing while carrying a weapon or tool, stealing in a gang, and burglary.

In contrast to § 243 StGB, these facts are not standard examples, but qualifications. They therefore have a binding effect on the judge.

Serious gang theft (Section 244a StGB)

Section 244a of the Criminal Code serves to combat organized crime. It represents a combination of qualifications that increase the severity of the penalties and examples of the rules. An act according to Section 244a of the Criminal Code is punished with imprisonment from one year to ten years.

According to Section 244a of the Criminal Code, anyone who, as a member of a gang of thieves, realizes a standard example or another qualification characteristic of Section 244 of the Criminal Code.

criminology

Total recorded cases of theft in the years 1987-2019 as a frequency number (per 100,000 inhabitants)

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 numbers have been falling sharply for three decades. In 1993 there were still 5,126 cases per 100,000 population. In 2019, it was less than half as many with just 2,195. The decrease was 57%. This means that the theft crime area has declined even more than overall crime, which has only fallen by 21%. The pattern of a decrease in the incidence of theft since the early 1990s can be found in all Western countries. It's part of an overall decline in crime .

Theft is by far the most common offense. Almost 40% of all acts recorded by the police represent thefts. Slightly more than half of these are simple thefts according to Section 242 of the Criminal Code. The other offenses are thefts under aggravating circumstances, in which standard examples or qualification facts are met.

Practically significant forms of theft are the theft from shops, cashless means of payment and bicycles.

The clearance rate varies greatly between the individual groups of cases of theft. In the case of shoplifting, it is regularly over 90%. It is significantly lower for the theft of bicycles and cashless means of payment; in both case groups it was below 10% in 2016.

Jurisprudence suspects a high degree of unreported .

Police crime statistics for theft without aggravating circumstances in the Federal Republic of Germany
Cases recorded
year All in all Per 100,000 inhabitants Proportion of attempted acts

(absolute / relative)

Clearance rate
1987 1,060,957 1,735.3 26,000 (2.5%) 47.1%
1988 1,042,710 1,702.7 22,781 (2.2%) 47.5%
1989 1,052,319 1,705.1 22,135 (2.1%) 48.6%
1990 1,147,314 1,830.5 17,566 (1.5%) 51.3%
1991 1,201,444 1,848.3 17,824 (1.5%) 50.0%
1992 1,290,940 1,962.9 18,263 (1.4%) 51.0%
1993 1,605,495 1982.7 27,083 (1.7%) 51.5%
1994 1,489,037 1,830.7 21,962 (1.5%) 49.5%
1995 1,530,796 1,877.4 22,587 (1.5%) 50.2%
1996 1,560,779 1,907.6 23,148 (1.5%) 52.1%
1997 1,572,558 1,917.5 23,783 (1.5%) 53.0%
1998 1,525,869 1,859.5 24,529 (1.6%) 52.8%
1999 1,480,659 1,804.9 23,015 (1.6%) 50.6%
2000 1,463,794 1,781.6 23,123 (1.6%) 48.7%
2001 1,475,375 1,793.6 24,357 (1.7%) 47.8%
2002 1,535,562 1,862.6 25,526 (1.7%) 47%
2003 1,540,932 1867.0 26,753 (1.7%) 45.6%
2004 1,516,984 1,838.0 27,732 (1.8%) 45.0%
2005 1,415,530 1,715.8 26,229 (1.9%) 43.9%
2006 1,362,616 1,652.9 26,395 (1.9%) 43.6%
2007 1,314,277 1,596.6 26,360 (2.0%) 43.5%
2008 1,277,295 1,553.5 28,288 (2.2%) 43.3%
2009 1,235,880 1,507.1 27,313 (2.2%) 43.8%
2010 1,233,812 1,508.3 27,447 (2.2%) 42.9%
2011 1,290,502 1,578.6 30,488 (2.4%) 40.8%
2012 1,281,299 1,565.5 31,550 (2.5%) 39.2%
2013 1,298,545 1,583.2 31,666 (2.4%) 38.1%
2014 1,322,144 1,637.0 32,971 (2.5%) 37.5%
2015 1,348,955 1,661.3 34,878 (2.6%) 37.8%
2016 1,290,481 1,570.4 33,335 (2.6%) 37.9%
2017 1,156,422 1,401.4 28,995 (2.5%) 39.3%
2018 1,082,478 1,307.5 27,028 (2.5%) 40.2%

See also

literature

  • Wolfgang Bittner: The term custody and its meaning for the systematics of property crimes. Südwestdeutscher Verlag für Hochschulschriften, Saarbrücken 2008, ISBN 978-3-8381-0051-7 .
  • Albin Eser, Nikolaus Bosch: § 242. In: Adolf Schönke, Horst Schröder, Albin Eser (ed.): Criminal Code: Comment . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  • Urs Kindhäuser: § 242. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Hrsg.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  • Hans Kudlich: § 242 . In: Helmut Satzger, Wilhelm Schluckebier, Gunter Widmaier (Ed.): Criminal Code: Commentary . 3. Edition. Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28685-7 .
  • Wolfgang Joecks, Christian Jäger: Criminal Code: Study Commentary . 12th edition. CH Beck, Munich 2018, ISBN 978-3-406-67338-2 . Wolfgang Joecks, Christian Jäger: Criminal Code: Study Commentary . 12th edition. CH Beck, Munich 2018, ISBN 978-3-406-67338-2 .
  • Felix Prinz: Theft §§ 242 ff. Nomos-Verlag, Baden-Baden 2002, ISBN 3-7890-8124-8 .
  • Roland Schmitz: § 242. In: Günther Sander (Hrsg.): Munich Commentary on the Criminal Code . 2nd Edition. tape 4 : §§ 185–262 StGB. CH Beck, Munich 2012, ISBN 978-3-406-60290-0 .
  • Joachim Vogel: § 242 . In: Heinrich Wilhelm Laufhütte, Joachim Vogel (Ed.): Leipzig Commentary on the Criminal Code . 12th edition. tape 8 : §§ 242 to 262.De Gruyter, Berlin 2010, ISBN 978-3-89949-785-4 .

Web links

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

Individual evidence

  1. ↑ a b c d e f Police crime statistics. Federal Criminal Police Office, accessed on March 30, 2020 .
  2. ↑ a b Michael Tonry: Why Crime Rates Are Falling Throughout the Western World, 43 Crime & Just. 1 (2014). P. 5 , accessed on June 6, 2019 (English).
  3. ↑ a b c d Urs Kindhäuser: § 242 , Rn. 1. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  4. ↑ Thomas Fischer: Penal Code with ancillary laws . 65th edition. CH Beck, Munich 2018, ISBN 978-3-406-69609-1 , § 242, Rn. 2.
  5. ↑ Hans Kudlich: § 242 , Rn. 3. In: Helmut Satzger, Wilhelm Schluckebier, Gunter Widmaier (eds.): Criminal Code: Commentary . 3. Edition. Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28685-7 .
  6. ↑ Kristian Kühl: § 242 , Rn. 1. In: Kristian Kühl, Martin Heger: Criminal Code: Comment . 29th, revised edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 .
  7. ↑ Christian Jäger: Theft according to the 6th Penal Law Reform Act - A guide for study and practice . In: Juristische Schulung 2000, p. 651.
  8. ^ A b Wolfgang Mitsch: Criminal Law, Special Part 2: Property offenses . 3. Edition. Springer Science + Business Media, Berlin 2015, ISBN 978-3-662-44934-9 , pp. 5 .
  9. ↑ a b c Thomas Fischer: Criminal Code with subsidiary laws . 65th edition. CH Beck, Munich 2018, ISBN 978-3-406-69609-1 , § 242, Rn. 3.
  10. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 2, marginal no. 12.
  11. ^ A b LG Karlsruhe, judgment of June 21, 1993, 8 AK 25/93 = Neue Zeitschrift für Strafrecht 1993, p. 543.
  12. ↑ RGSt 23, 24 .
  13. ↑ RGSt 29, 111 .
  14. ↑ Urs Kindhäuser: § 242. Rn. 26. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  15. ^ Roland Schmitz: § 242. Rn. 30. In: Günther Sander (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 4 : §§ 185–262 StGB. CH Beck, Munich 2012, ISBN 978-3-406-60290-0 .
  16. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 2, marginal no. 13.
  17. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , pp. § 2, Rn. 14 .
  18. ^ A b Wolfgang Mitsch: Criminal Law, Special Part 2: Property offenses . 3. Edition. Springer Science + Business Media, Berlin 2015, ISBN 978-3-662-44934-9 , pp. 7 .
  19. ^ BGH, decision of September 20, 2005, 3 StR 295/05 = Neue Juristische Wochenschrift 2005, p. 92.
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  21. ↑ Wolfgang Mitsch: Criminal Law, Special Part 2: Property Offenses . 3. Edition. Springer Science + Business Media, Berlin 2015, ISBN 978-3-662-44934-9 , pp. 11 .
  22. ↑ Ulrich Weber: No ban on collecting bulky waste. In: JuristenZeitung 1978, p. 691.
  23. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 2, marginal no. 18th
  24. ^ Matthias Jahn: Comment on OLG Hamm, decision of February 10, 2011, III 3 RVs 103/10. In: Legal Training 2011, p. 755.
  25. ^ Roland Schmitz : § 242 , Rn. 44. In: Günther Sander (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 4 : §§ 185–262 StGB. CH Beck, Munich 2012, ISBN 978-3-406-60290-0 .
  26. ↑ Wolfgang Mitsch: Criminal Law, Special Part 2: Property Offenses . 3. Edition. Springer Science + Business Media, Berlin 2015, ISBN 978-3-662-44934-9 , pp. 35 .
  27. ↑ BGHSt 8, 275 .
  28. ↑ BGHSt 16, 271 .
  29. ↑ Urs Kindhäuser: § 242. Rn. 31. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  30. ↑ Thomas Fischer: Penal Code with ancillary laws . 65th edition. CH Beck, Munich 2018, ISBN 978-3-406-69609-1 , § 242, Rn. 11.
  31. ↑ Urs Kindhäuser: § 242 , Rn. 30. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  32. ↑ BGHSt 22, 180 (182).
  33. ↑ BGHSt 23, 254 (255).
  34. ↑ Erich Samson: Basic problems of theft (§ 242 StGB). In: Juristische Arbeitsblätter 1980, p. 285 (287).
  35. ↑ Thomas Fischer: Penal Code with ancillary laws . 65th edition. CH Beck, Munich 2018, ISBN 978-3-406-69609-1 , § 242, Rn. 12.
  36. ↑ Albin Eser, Nikolaus Bosch: § 242. Rn. 29. In: Adolf Schönke, Horst Schröder, Albin Eser (ed.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  37. ↑ BGHSt 4, 210 (211).
  38. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 2, marginal no. 32.
  39. ↑ Michael Heghmanns: Criminal law for all semesters: special part . Springer, Berlin 2009, ISBN 978-3-540-85314-5 , pp. 290 .
  40. ↑ Thomas Fischer : Penal Code with ancillary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 242, Rn. 13.
  41. ↑ Wolfgang Mitsch: Criminal Law, Special Part 2: Property Offenses . 3. Edition. Springer Science + Business Media, Berlin 2015, ISBN 978-3-662-44934-9 , pp. 18-19 .
  42. ↑ Wolfgang Mitsch: Criminal Law, Special Part 2: Property Offenses . 3. Edition. Springer Science + Business Media, Berlin 2015, ISBN 978-3-662-44934-9 , pp. 22 .
  43. ↑ Jan Zopfs: The offense of theft - Part 1. In: Journal for Legal Studies 2009, p. 510.
  44. ↑ Thomas Fischer: Penal Code with ancillary laws . 65th edition. CH Beck, Munich 2018, ISBN 978-3-406-69609-1 , § 242, Rn. 20th
  45. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 2, marginal no. 39-41.
  46. ^ Kristian Kühl, Martin Heger: Criminal Code: Comment . 29th, revised edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 , § 242, Rn. 14th
  47. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 2, marginal no. 43.
  48. ↑ BGH, judgment of January 15, 1981, 4 StR 652/80 = Neue Juristische Wochenschrift 1981, p. 997.
  49. ^ Roland Schmitz : § 242 , Rn. 79. In: Günther Sander (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 4 : §§ 185–262 StGB. CH Beck, Munich 2012, ISBN 978-3-406-60290-0 .
  50. ↑ Hellmuth Mayer: On the concept of removal . In: JuristenZeitung 1962, p. 617.
  51. ↑ Urs Kindhäuser: § 242. Rn. 58. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  52. ↑ Michael Ling: On breach of custody during theft, especially in self-service shops. In: Journal for Criminal Law Science 1998, p. 919.
  53. ↑ Nikolaus Bosch: Detention determination according to the "natural conception of daily life". In: Jura 2014, p. 1237 (1238).
  54. ↑ BGHSt 16, 271 (272).
  55. ↑ Hans Welzel: The concept of custody and thefts in self-service shops. In: Goltdammer's Archive for Criminal Law 1960, p. 257.
  56. ↑ BGH, judgment of June 24, 1981, 3 StR 182/81 = Neue Zeitschrift für Strafrecht 1981, p. 435.
  57. ↑ BGH, judgment of 4 StR 561/81 = New Journal for Criminal Law 1982, p. 420.
  58. ↑ Anke Borsdorff: custody problems with electronic goods security. In: Juristische Rundschau 1989, p. 4.
  59. ↑ Jürgen Seier: Protection against shoplifting through security labels. In: Juristische Arbeitsblätter 1985, p. 387.
  60. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 2, marginal no. 54.
  61. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 2, marginal no. 55-58.
  62. ↑ BGHSt 10, 400 .
  63. ↑ Erich Samson: Basic problems of theft (§ 242 StGB). In: Juristische Arbeitsblätter 1980, p. 285 (288).
  64. ↑ Wolfgang Mitsch: Criminal Law, Special Part 2: Property Offenses . 3. Edition. Springer Science + Business Media, Berlin 2015, ISBN 978-3-662-44934-9 , pp. 23 .
  65. ↑ BGHSt 8, 273 (276).
  66. ↑ BGHSt 16, 271 (273).
  67. ↑ BGHSt 26, 24 (26).
  68. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 2, marginal no. 46-48.
  69. ↑ Albin Eser, Nikolaus Bosch: § 242. Rn. 36. In: Adolf Schönke, Horst Schröder, Albin Eser (eds.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  70. ↑ OLG Celle, judgment of May 6, 1996, 3 Ss 21/96 = Neue Juristische Wochenschrift 1997, p. 1518.
  71. ↑ Adolf Rebler: "Self-service" when refueling and criminal law . In: Legal worksheets 2013, p. 179.
  72. ^ A b c d Carlo Pöschke: Classics of criminal law: gas station cases. In: http://www.juraexamen.info/ . September 25, 2019, accessed December 26, 2019 .
  73. ↑ OLG Cologne, decision of January 22, 2002, Ss 551/01 - 2/02 = Neue Juristische Wochenschrift 2002, p. 1059.
  74. ↑ BGH, judgment of May 5, 1983, 4 StR 121/83 = Neue Juristische Wochenschrift 1983, p. 2827.
  75. ↑ Urs Kindhäuser: § 242. Rn. 47-48. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  76. ↑ Urs Kindhäuser: § 242. Rn. 51. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  77. ↑ a b Urs Kindhäuser: § 242. Rn. 60. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  78. ↑ RGSt 76, 131 .
  79. ↑ Urs Kindhäuser: § 242. Rn. 53. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  80. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 27, marginal no. 44.
  81. ^ Roland Schmitz : § 242 , Rn. 109. In: Günther Sander (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 4 : §§ 185–262 StGB. CH Beck, Munich 2012, ISBN 978-3-406-60290-0 .
  82. ↑ Albin Eser, Nikolaus Bosch: § 263. Rn. 66. In: Adolf Schönke, Horst Schröder, Albin Eser (ed.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  83. ↑ Klaus Tiedemann: § 263. Rn. 116. 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 .
  84. ↑ OLG Karlsruhe, judgment of December 18, 1975, 1 Ss 343/75 = Neue Juristische Wochenschrift 1976, p. 903.
  85. ↑ Wolfgang Mitsch: Criminal Law, Special Part 2: Property Offenses . 3. Edition. Springer Science + Business Media, Berlin 2015, ISBN 978-3-662-44934-9 , pp. 297 .
  86. ↑ BGHSt 41, 198 .
  87. ↑ BGHSt 17, 205 .
  88. ↑ Urs Kindhäuser: § 242. Rn. 67. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  89. ↑ Kristian Kühl: Criminal Law General Part . 7th edition. Vahlen, Munich 2012, ISBN 978-3-8006-4494-0 , § 5, Rn. 43.
  90. ↑ RGSt 65, 71 .
  91. ↑ BGHSt 22, 350 (351).
  92. ↑ Hans Kudlich: § 242 , Rn. 39 In: Helmut Satzger, Wilhelm Schluckebier, Gunter Widmaier (Ed.): Criminal Code: Commentary . 3. Edition. Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28685-7 .
  93. ↑ RGSt 14, 117 .
  94. ↑ BGHSt 16, 271 (278).
  95. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 2, marginal no. 76.
  96. ↑ Kai Ensenbach: Range and limits of the material value theory in §§ 242, 246 StGB . In: Journal for the entire criminal law science 2012, p. 343.
  97. ↑ Johannes Wessels: appropriation, usability and. Deprivation of property . In: Neue Juristische Wochenschrift 1965, p. 1153.
  98. ↑ RGSt 40, 10 (12).
  99. ↑ BGHSt 35, 152 (157).
  100. ↑ Jan Zopfs: The offense of theft - Part 2 . In: Journal for Legal Studies 2009, p. 649 (653).
  101. ↑ Urs Kindhäuser: § 242. Rn. 70-71. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  102. ↑ Hans Kudlich: § 242 , Rn. 41 In: Helmut Satzger, Wilhelm Schluckebier, Gunter Widmaier (Ed.): Criminal Code: Commentary . 3. Edition. Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28685-7 .
  103. ↑ Urs Kindhäuser: § 242. Rn. 69. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  104. ↑ OLG Celle, judgment of March 16, 1967, 1 Ss 10/67 = Neue Juristische Wochenschrift 1967, p. 1921.
  105. ↑ BGH, judgment of December 15, 2016, 3 StR 422/16.
  106. ↑ Hans Kudlich, Mustafa Oğlakcıoğlu: “It is the inner values ​​that count ” - the intent to apologize in case processing . In: Juristische Arbeitsblätter 2012, p. 321 (322).
  107. ↑ Joachim Vogel: § 242 , Rn. 172. In: Heinrich Wilhelm Laufhütte, Joachim Vogel (Ed.): Leipzig Commentary on the Criminal Code . 12th edition. tape 8 : §§ 242 to 262.De Gruyter, Berlin 2010, ISBN 978-3-89949-785-4 .
  108. ↑ Hans Kudlich: § 242 , Rn. 49–51 In: Helmut Satzger, Wilhelm Schluckebier, Gunter Widmaier (eds.): Criminal Code: Commentary . 3. Edition. Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28685-7 .
  109. ↑ BGHSt 17, 87 .
  110. ↑ Thomas Fischer: Penal Code with ancillary laws . 65th edition. CH Beck, Munich 2018, ISBN 978-3-406-69609-1 , § 248a, Rn. 3-3a.
  111. ↑ Albin Eser, Nikolaus Bosch: § 248a. Marg. 7. In: Adolf Schönke, Horst Schröder, Albin Eser (ed.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  112. ↑ Thomas Fischer: Penal Code with ancillary laws . 65th edition. CH Beck, Munich 2018, ISBN 978-3-406-69609-1 , § 247, Rn. 1a.
  113. ↑ BGHSt 16, 271 (272).
  114. ↑ BGHSt 23, 254 (255).
  115. ^ BGH, judgment of May 5, 2010, 4 StR 72/10.
  116. ↑ Martin Böse: The error about the object of removal and appropriation in the case of theft (§ 242 StGB) . In: Goltdammer's Archive for Criminal Law 2010, p. 249.
  117. ↑ BGHSt 4, 132 (133).
  118. ↑ BGHSt 8, 390 (391).
  119. ↑ Thomas Fischer: Penal Code with ancillary laws . 65th edition. CH Beck, Munich 2018, ISBN 978-3-406-69609-1 , § 242, Rn. 56.
  120. ^ Walter Gropp: The theft with special consideration of the standard examples . In: Juristische Schulung 1999, p. 1041.
  121. ↑ Björn Jesse: Inferiority of what has been achieved and an unnamed particularly serious case of theft and fraud . In: Legal Training 2011, p. 313.
  122. ↑ Urs Kindhäuser: § 243 , Rn. 8. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  123. ↑ RGSt 4, 354 .
  124. ↑ RGSt 13, 258 .
  125. ↑ BGHSt 10, 132 .
  126. ↑ RGSt 52, 84 .
  127. ↑ BGHSt 14, 291 (292).
  128. ↑ Urs Kindhäuser: § 243. Rn. 18. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  129. ↑ Urs Kindhäuser: § 243 , Rn. 20. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  130. ↑ Thomas Fischer: Penal Code with ancillary laws . 65th edition. CH Beck, Munich 2018, ISBN 978-3-406-69609-1 , § 243, Rn. 15th
  131. ↑ OLG Stuttgart: October 29, 1984, 1 Ss 672/84 = New Journal for Criminal Law 1985, p. 76.
  132. ^ OLG Hamm, judgment of September 6, 2004, 2 Ss 289/04 = New Journal for Criminal Law Jurisprudence Report 2004, p. 335.
  133. ↑ Urs Kindhäuser: § 243 , Rn. 27a-28. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  134. ↑ BGHSt 21, 64 (65).
  135. ↑ Urs Kindhäuser: § 243 , Rn. 31-34. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  136. ↑ Urs Kindhäuser: § 243 , Rn. 35. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  137. ↑ OLG Hamm, judgment of August 30, 2007, 3 Ss 339/07 = New Journal for Criminal Law 2008, p. 218.
  138. ↑ Urs Kindhäuser: § 243 , Rn. 40. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  139. ↑ Urs Kindhäuser: § 243 , Rn. 53. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  140. ↑ BGHSt 26, 104 .
  141. ↑ Thomas Fischer: Penal Code with ancillary laws . 65th edition. CH Beck, Munich 2018, ISBN 978-3-406-69609-1 , § 243, Rn. 26th
  142. ^ Kristian Kühl, Martin Heger: Criminal Code: Comment . 29th, revised edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 , § 243, Rn. 4th
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  144. ^ Roland Schmitz: § 243. Rn. 74-77. In: Günther Sander (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 4 : §§ 185–262 StGB. CH Beck, Munich 2012, ISBN 978-3-406-60290-0 .
  145. ^ Rudolf Rengier: Criminal Law Special Part I: Property offenses . 18th edition. CH Beck, Munich 2016, ISBN 978-3-406-68816-4 , § 3, Rn. 51-56.
  146. ↑ BGHSt 33, 370 (377).
  147. ↑ BGHSt 33, 370 .
  148. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 3, marginal no. 56.
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  151. ^ Eva Graul: Try a rule example. In: Juristische Schulung 1999, p. 854.
  152. ↑ Johannes Wessels: On the indicative effect of the rule examples for particularly serious cases of a criminal offense. In: Wilfried Küper, Ingeborguppe, Jörg Tenckhoff (Hrsg.): Festschrift for Karl Lackner on the 70th birthday. Berlin 1987, p. 435.
  153. ↑ Jan Zopfs: The serious gang theft according to § 244a StGB. In: Goldtdammer's Archive 1995, p. 321.
  154. ↑ Albin Eser, Nikolaus Bosch: § 244a. Marg. 1. In: Adolf Schönke, Horst Schröder, Albin Eser (Ed.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  155. ↑ Joachim Vogel: § 242 , Rn. 7. In: Heinrich Wilhelm Laufhütte, Joachim Vogel (Ed.): Leipzig Commentary on the Criminal Code . 12th edition. tape 8 : §§ 242 to 262.De Gruyter, Berlin 2010, ISBN 978-3-89949-785-4 .
  156. ↑ Urs Kindhäuser: § 242 , Rn. 2-3. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .