Fraud (Germany)

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The fraud is a fact of German criminal law . It is one of the property offenses and is regulated in § 263 StGB. The purpose of the penal norm is to protect property . It records behavior with which someone can trick someone into harming their own property for the benefit of the perpetrator or a third party.

A prison sentence of up to five years or a fine can be imposed for fraud . The number of reported cases has been in the upper six-digit range for many years. In 2017, 910,352 frauds were reported, making fraud the most frequently reported offense after theft ( Section 242 StGB). Fraud together with the offense of breach of trust ( Section 266 of the Criminal Code) is of particular importance in white collar crime .

Standardization and legal protection

Since it was last changed on July 1, 2017, the offense of fraud has been as follows:

(1) Anyone who intends to obtain an unlawful pecuniary advantage for himself or a third party, damages the property of another by provoking or maintaining an error by pretending to be false or by distorting or suppressing true facts, is subject to a prison sentence of up to five years or punished with a fine.

(2) The attempt is punishable.

(3) In particularly serious cases, the penalty is imprisonment from six months to ten years. A particularly serious case is usually when the perpetrator

1. acts commercially or as a member of a gang that has joined forces to continue the commission of forgery or fraud,
2. causes a large-scale loss of property or acts with the intention of putting large numbers of people at risk of loss of property by continuing to commit fraud,
3. brings another person into economic need,
4. Abuses his powers or his position as a public official or European public official or
5. feigns an insured event after he or someone else has set fire to something of significant value or destroyed it in whole or in part by setting fire to it, or caused a ship to sink or strand.

(4) Section 243 (2) as well as Sections 247 and 248a apply accordingly.

(5) A prison sentence of one year to ten years, in less serious cases a prison sentence of six months to five years, is punished for anyone who commits fraud as a member of a gang that is committed to the continued commission of criminal offenses according to Sections 263 bis 264 or 267 to 269, commits commercially.

(6) The court can order conduct supervision (Section 68 (1)).

Because of the range of punishments of up to five years' imprisonment or a fine contained in Paragraph 1, fraud is a misdemeanor under Section 12 Paragraph 2 of the Criminal Code. This also applies to the particularly severe cases mentioned in Paragraph 3. On the other hand, it is a crime if the conditions mentioned in paragraph 5 are met.

The act of fraud serves to protect the property.

History of origin

Developing an understanding of fraud

The legal systems of antiquity and the Middle Ages were unfamiliar with fraud, as is known in current German law. Actions that are now regarded as fraud were assigned to other crime groups at the time, such as infidelity and fraud . According to the opinion of the time, damage to someone else's property could already be adequately compensated for by civil law.

The Prussian General Land Law issued in 1794 contained a fraudulent act . In Section 1256 (2), this defined fraud as inducing an error that leads to the rights of another being impaired. Unlike the current Section 263 of the Criminal Code , this norm did not have a specific asset relation . The same applies to fraud in the Bavarian Criminal Code of 1813.

On the other hand, fraud in the Prussian Penal Code of 1851 had the character of a property offense . This norm was created on the basis of the fraud norm of the French code pénal of 1810 ( escroquerie ). According to this, fraud was committed by anyone who, with the intent to gain profit, damaged the property of another by provoking an error by presenting false facts or by distorting or suppressing true facts. The cause of the change from fraud to a pure property crime lies in the change in economic conditions in the course of the Enlightenment , which resulted in new forms of property- related crime.

Development of the German criminal law against fraud

After minor changes, the Prussian fraud was incorporated into the Criminal Code of the North German Confederation from 1870 and two years later into that of the German Empire .

During the imperial era , the content of Section 263 of the Criminal Code remained unchanged. However, the legislature created numerous thematically related offenses to fraud in order to curb the economic crime that emerged in the early days. These include, for example, falsification of the balance sheet ( Section 331 of the Commercial Code ) and fraudulent establishment ( Section 82 of the Law on Limited Liability Companies , Section 399 of the Stock Corporation Act ). A ban on misleading advertising was also created ( Section 16 of the Act against Unfair Competition ).

On October 1, 1933, the offense of fraud was supplemented by a particularly serious case as a sentencing regulation , which provided for a higher range of punishments than the simple variant. This was made more precise through several rule examples . These are aggravating reasons that, unlike qualifications, do not necessarily lead to a more severe punishment. If there is a standard example, the law only recommends that the judge impose a higher sentence than simple fraud. The legislature recommended a higher penalty if the perpetrator harmed the welfare of the people, caused particularly great damage or acted particularly maliciously .

With effect from October 1, 1953, the standard examples were removed from fraud, but the particularly serious case was left in the law as an indefinite aggravating reason. On January 1, 1975, the legislature added references to the determination of the sentencing and criminal complaint provisions for theft ( Section 242 of the Criminal Code).

With the first and second laws to combat economic crime of 1976 and 1986, the legislature created several new offenses that made certain fraud-related acts separately punishable. These include, for example, credit fraud ( Section 265b StGB) and capital investment fraud ( Section 264a StGB).

With the Sixth Criminal Law Reform Act of 1998, the legislature created five new examples of rules that made particularly serious fraud concrete again. These were designed on the basis of various offenses, such as theft and bankruptcy ( § 283 StGB). In addition, the legislature created a qualification which , like the standard examples , serves to combat organized crime more effectively . Unlike the rule examples, the qualification includes a mandatory increase in the penalty.

Objective fact

To deceive

A criminal liability for fraud presupposes that the perpetrator deceives another about a fact . A fact is something that can be proven to exist. This applies, for example, to the value or quality of a thing. One can also deceive about voluntary elements such as one's own willingness to pay; this is called an inner fact. Unprovable things, such as the possibility of exorcising the devil , can also count as facts in the sense of fraud if the perpetrator presents them to his victim as provable.

The fact is to be distinguished from the opinion which is not a fact. This includes, for example, promotional advertising statements without verifiable factual information as well as the assertion of a truly non-existent legal claim . However, it goes beyond the mere assertion of a legal opinion if the perpetrator untruthfully claims the existence of prerequisites justifying the claim, for example the existence of a contract. Whether or not it has been completed is amenable to evidence, and therefore it is a fact that can be deceived.

The act of deceiving refers to the faking, distortion or suppression of a fact. The perpetrator can deceive both explicitly and through conclusive action. Express deception occurs, for example, in writing, orally or through gestures. Such deceptions are involved, for example, when someone enters incorrect items in an invoice or provides incorrect information about the nature of a product. It is an implied deception if the perpetrator, through conclusive action, creates an incorrect appearance. Such a situation can arise because legal transactions attach explanatory value to the offender's actions. Anyone who makes use of a paid service, for example, implicitly declares that they are solvent and willing, as this is the basis of the exchange of services . This applies, for example, to filling up at self-service filling stations. The same applies to sports betting : if someone takes part in such a bet, they declare that they have not manipulated the outcome of the sporting event, as this is the basis of the business. It is similar with doping .

Decisive action also deceives whoever sells lottery tickets and holds back the main hit: The ticket buyer can assume that he can draw a main prize when purchasing a ticket. An implied deception is also present if someone designs a chargeable internet offer in such a way that the user does not pay a fee (“ subscription trap ”). The same applies to lure calls : Here someone dials numerous numbers and breaks off after ringing once. The perpetrator relies on the fact that as many people as possible call back, unconsciously dialing a high-cost number . The deception lies in the pretense of a willingness to talk and in creating the impression that the recall is not associated with extraordinary costs.

In principle, there is no implied deception if someone merely exploits an existing error, for example by deliberately allowing too high a value to be paid out when exchanging foreign banknotes. Basically, participants in legal transactions are not obliged to inform others about their misconceptions. However, special trust within a legal relationship can lead to the creation of a guarantor obligation. For example, a consulting contract can oblige the parties to provide mutual clarification, so that one party can also deceive by not pointing out a circumstance to the other. Bank customers, on the other hand, are generally not obliged to notify their bank of incorrect bookings in their favor. The same applies to an inadvertently excessive wage payment by the employer : the conclusion of an employment contract alone does not in principle create a guarantee obligation for the employee towards the employer. A guarantee obligation can, however, arise through responsibility for the occurrence of an error ( ingerenz ). For example, someone who unconsciously triggers a misconception in another is obliged to inform the other about this misconception.

mistake

The act of deception must provoke or perpetuate error in another person . According to the prevailing view in jurisprudence, an error is a victim's misconception of a fact.

Since only one person can be mistaken, the manipulation of machines and computer systems is not covered by the fraud offense under Section 263 of the Criminal Code, but by separate regulations such as computer fraud ( Section 263a of the Criminal Code) or the fraudulent use of services ( Section 265a of the Criminal Code). An error is also ruled out if the perpetrator's act of deception cannot be perceived by any other person. This can be the case, for example, when refueling at a self-service filling station, if the perpetrator intends not to pay for the fuel. However, attempted fraud is usually an option.

Even if the victim doubts the perpetrator's testimony, there may be an error, since the prevailing opinion is that it is sufficient for the victim to consider the perpetrator's allegation of fact to be possibly correct. For the assumption of an error, it is also irrelevant whether the victim could easily have recognized the untruth of the statement in question, for example due to obvious inaccuracies or exaggerations.

There is no mistake if the recipient of the deception does not give any thought to the facts about which the deception is taking place. This is often the case, for example, when paying with a credit card : the payee has no idea about the solvency of his customer because, due to the legal relationship on which the credit card is based, the service is owed to him by the card issuer and not by his customer. If the customer therefore deceives the payee about his or her ability to pay, this will not work. A criminal liability for attempted fraud can therefore be considered . It is similar when withdrawing money at a bank counter. The bank employee is only obliged to check the identity and the funds in the account, but not whether the requested money is actually due to the customer. It is controversial how cheating is to be assessed in the civil procedural dunning procedure : In order for the responsible judicial officer to be subject to an error caused by deception, he or she must have an idea of ​​the legality of the claim being made. Whether this is the case is judged differently in jurisprudence and teaching due to the limited review competence of the Rechtspfleger.

Disposal of assets

General

The constitutive feature of disposing of property is not required by law, but it is recognized in jurisprudence and teaching, as it creates a connection between the excitement of error and harm to the victim. This connection lies in the fact that the victim damages his or her property through his own actions. The disposal of assets therefore serves to differentiate between the self-harm offense fraud and other offenses, in particular theft.

The subject of the disposal of assets is an act, toleration or omission of the victim that leads directly to a reduction in assets. This happens, for example, by entering into a liability. The term “disposition” does not coincide with the identical term from civil law , which is why it also covers purely actual actions in addition to legal transactions. Also capacity of the victim is not a necessary condition of an asset disposal.

A disposal of assets only fulfills the offense of § 263 StGB if it leads to damage without further intermediate steps. This is lacking if the perpetrator merely creates the possibility of later unauthorized access to the victim's assets through the deception. This is the case, for example, if he sneaks access to a room in order to be able to steal there afterwards. Letting in due to deception does not result in an immediate shift in assets, which is why the perpetrator does not commit fraud. Rather, such a case constellation represents a trick theft .

It is controversial which type of property is protected by criminal law: While the jurisprudence regards all monetary goods as protected (economic property concept), the prevailing view in jurisprudence only regards those assets as protected that are under the protection of the legal system (legal-economic property concept ). The latter view removes from the scope of fraud, for example, claims from moral or illegal relationships, unlike the economic asset concept . In the event of gross violations of the law, however, the case law also refuses the property protection under criminal law in order to avoid a contradiction between criminal law and the rest of the legal system.

Differentiation from theft and fraud

If theft and fraud are considered actual crimes in a given situation, as is often the case with things being carried out in self-service shops, the distinction between the two facts is based on the will of the injured party. The decisive factor is whether in the act the taking of the thing against the will of the person in custody is in the foreground or a deliberate giving away by the same through deception. If the victim agrees to the change of custody due to deception, there is fraud. If, on the other hand, he allows the change of custody to take place without being aware that a shift in custody is taking place at his expense, or if it even takes place against his will, theft has occurred.

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. Since the cashier does not even notice the goods, he cannot dispose of them either. Instead, the perpetrator breaks the custody of the shopkeeper without his will, so he takes something away . There is also a theft if the perpetrator pretends to be a public official and pretends to seize an item : the victim surrenders the item independently, but this is done under the impression of sovereign coercion, so that it does not act voluntarily.

Multi-person relationships

Although it is necessary for the existence of fraud that the person disposing of the property is also the deceived person, it is not necessary that the person of the deceived person is identical with that of the damaged property owner. Hence, if a person is deceived and as a result has someone else's assets, it can constitute fraud. Such constellations are called triangular fraud.

A triangular fraud is, for example, litigation fraud . In this case, the perpetrator, through deception within a court process, causes the court to make an incorrect decision to the detriment of another.

Another case of triangular fraud can be the giving away of someone else's thing by a person of good faith. Such a case exists, for example, when the perpetrator pretends to a guard at a collective garage that he is collecting a vehicle from the garage on behalf of the owner. In such constellations, both fraud and theft as an indirect perpetrator come into consideration as actual crimes . Since, according to the prevailing opinion, both offenses are mutually exclusive even in triangular relationships, there is broad agreement in research and jurisprudence that a distinction must be made between them with the aid of the property disposal. However, it is controversial according to which criteria this is done:

In some cases, it is based on the actual possibility of influencing third-party assets. According to this view, known as the proximity theory, there is a disposal of assets and thus fraud if the deceived person is in a position to dispose of the foreign assets. This view is modified by some legal scholars to the effect that the deceived person must be assigned to the camp of the injured party. This is the case when his task is to preserve and guard the property of the injured party. Decisive for the allocation to the camp of the injured party is the subjective idea of ​​the person disposing and the answer to the question of whether the deceived person would like to act in the interests of the injured party (in good faith).

These approaches, which are based on actual events, are opposed to an opinion based on the existence of a legal authority to dispose of. According to this conception, known as the authorization theory, the giving away of someone else's thing only constitutes fraud in cases in which the deceived person is entitled to give away the thing. Legal scholars object to this view that it is inconsistent to base the assessment of the existence of a disposal of assets on legal circumstances, but on the other hand on factual circumstances when assessing the existence of a removal.

Financial loss

Fraud also presupposes that the disposal of the deceived person results in financial loss. Such is the case if the loss suffered as a result of the disposition is not compensated for by an equivalent value, such as a claim . The way in which the existence of a compensation is determined is controversial between jurisprudence and teaching.

Economic teaching

According to a purely economic approach, which is basically favored by case law, the victim's assets are netted before and after the disposition: If this was greater before than afterwards, there is financial loss. All assets are taken into account, such as money, property, claims and specific prospects for financial gain. On the other hand, objects of no economic value are not recorded.

According to economic theory, damage is present, for example, when a seller promises a buyer to transfer ownership of woolen trousers and instead assigns him trousers that are made of cheaper synthetic fiber material. Since the victim pays the price of woolen trousers and, in return, acquires ownership of inferior synthetic fiber trousers, their wealth is reduced. This represents damage to property, so that there is performance fraud. There is also financial loss if someone steals a cash payment by stating items in an invoice that were not actually incurred. This is a billing fraud . This form of fraud is of great practical importance in healthcare.

There is no financial loss if the victim's financial situation does not deteriorate as a result of the disposition. The assumption of fraud can therefore be ruled out, for example, if the victim purchases magazines at the market price through a subscription taken out as a result of deception. The same applies if the victim purchases a product falsely advertised as a special offer that is objectively worth the price. For example, if the perpetrator claims to be selling woolen trousers as a special offer, even though they are only made of synthetic fiber material, there is no damage provided that the trousers are bought at a price that corresponds to the material value.

No compensation for the disposal of assets does not constitute statutory claims for compensation that arise , for example, due to intentional immoral damage ( Section 826 of the German Civil Code ). The same applies to design rights , such as the right to challenge due to fraudulent deception. Since these claims and rights are available to everyone who was deliberately deceived, their recognition as compensation led to extensive gaps in criminal liability, which would be contrary to the system. The situation is different, however, if the deceived person can effortlessly break away from the contract and thereby prevent damage from occurring, for example through a contractually agreed right of withdrawal .

Individual damage impact

The doctrine of the individual impact of damage is an exception to the principle of the purely economic comparison of asset positions. According to this, asset damage is also present if the victim is so financially exhausted as a result of the deception that he must fear that he will no longer be able to earn his living. This figure developed the jurisprudence in the milking machine case of 1961. In this case the perpetrator pretended to his victims that he was offering his victims milking machines at particularly favorable conditions. In truth, however, these were customary in the market. In spite of the acquisition at customary market conditions, the Federal Court of Justice assumed financial loss on the part of the buyer, as the buyer took on particular economic burdens to acquire the machines, which put them in financial need. A particularly advantageous acquisition of the machines could have alleviated this hardship and thereby compensated for the financial burden incurred through the disclosure of means of payment. However, since there was only a customary acquisition, the victims suffered financial loss.

According to the case law, an individual damage impact is also present if the victim is given an economically equivalent compensation that is useless from the victim's point of view, i.e. "if the person who was deceived does not buy the purchased item (which is worth the price in itself) for the contractually stipulated one Purpose or able to use it in another reasonable way ”. This is the case, for example, if, as a result of deception by the perpetrator, the victim subscribes to specialist journals whose content he does not understand. Even if ownership of these magazines offsets the contractual obligation to pay in terms of value, the uselessness of the acquired item for the victim means that the disposal of the property is not compensated. The same applies to the deception-related acquisition of a lexicon by a person who obviously cannot understand its content.

Disinterested purpose of disposal

The representatives of economic theory make another exception to the pure offsetting of assets in the case of unilateral performance by the victim: If the victim does not expect anything in return, for example because they donate money to a good cause, there is no unconscious loss of assets, as the victim knows that it will not receive any monetary consideration. Financial damage is therefore excluded. The advocates of the concept of economic property nonetheless affirm the possibility of property damage in that they attribute an asset to the social purpose pursued by the victim if this constitutes the decisive incentive for the victim. Failure to achieve a social purpose does not constitute financial damage if its support is only one of several motivations from the perspective of the victim. This is regularly the case, for example, when the perpetrator sells a thing to the victim and promises that part of the proceeds will benefit a social cause: The acquisition of the thing is often an essential motive for the victim, thereby promoting the social cause in the background device. Therefore, it is not the same as any other asset, so that failure to do so does not result in financial loss.

This reasoning also applies to the fraudulent acquisition of a subsidy . It can therefore constitute fraud to obtain subsidy payments through deception and to use them contrary to the purpose of the subsidy.

Missing purpose doctrine

Some legal scholars criticize the concept of individual damage influx as not being part of the fraud system: Since the fraud is based on the enrichment of assets caused by deception, the damage suffered by the victim must lead to an asset gain on the part of the perpetrator. However, this is not the case if the damage lies solely in the fact that the victim has no use for the service received or incurs disproportionate expenses for it. In addition, the doctrine of the individual impact of damage is difficult to reconcile with the criminal law requirement of certainty because it links a criminal liability requirement to the motivation of the victim.

Therefore, some legal scholars started to apply the principles of economic doctrine in the case of altruistic property dispositions to all types of property dispositions. The existence of pecuniary damage is therefore largely judged on the basis of the purpose that the victim serves with his disposal. According to this, damage is to be assumed if someone, due to deception, accepts a service that does not correspond to the one owed. If, for example, a seller pretends to his buyer that the object of sale has a certain quality, he is liable to prosecution for fraud even if the object of sale is worth its price.

Hazardous damage

starting point

According to the prevailing opinion, the risk of a loss of property can suffice for the assumption of property damage. Such a hazard presupposes that, from an economic point of view, the risk of loss is approximately equal to the latter. The figure of endangered damage is used, for example, in fraudulent entry . In this case, the victim undertakes to provide a service to the perpetrator due to deception. This constitutes financial loss if the victim acquires a claim in return that falls short of the value of his obligation. So the value of the mutual demands is compared. In addition to the financial value of the claim, the probability of its enforcement and the associated effort are taken into account.

Employment fraud is a special form of incoming fraud . Here the perpetrator gets into an employment relationship through deception. From an economic point of view, damage is present if the perpetrator's work performance lags behind the expected performance in terms of quality. If the position is a civil servant or a judge , damage can also be due to the fact that the perpetrator is unsuitable for such a position of trust due to his or her résumé, for example because of previous convictions or previous work in the Ministry for State Security . On the other hand, according to the doctrine of misappropriation, damage occurs if the offender's employment in the public service is associated with a violation of administrative regulations.

Endangering damage can also be considered if someone has a credit card issued as a result of fraud . The risk of a loss of assets lies in the fact that by giving the card the perpetrator is given the opportunity to oblige the card issuer to make payments. Furthermore, the assumption of endangering damage comes into consideration if the perpetrator uses deception to obtain an enforcement order against the victim.

In jurisprudence, it is controversial whether there is financial loss if the perpetrator transfers a third-party property to a person of good faith without the consent of the owner . In such cases the perpetrator deceives about his lack of authorization to transfer ownership. However, the assumption of pecuniary damage is opposed to the fact that the deceived person acquires property on the basis of the good faith provisions of property law , so that his disposal of property - usually the payment of a purchase price - is compensated by the acquisition of property. In such cases, the Reichsgericht nonetheless affirmed the loss of property, since the acquisition had a moral flaw, so that the acquisition of property did not fully compensate for the loss of property. This view, known as the flaw theory , has meanwhile been rejected in jurisprudence and teaching: The assumption of a flawed acquisition of property contradicts the recognition of the good faith acquisition by civil law. In some cases, however, the jurisprudence sees endangering damage in the fact that the bona fide purchaser must fear being sued by the previous owner for the surrender of the thing.

reception

Legal scholars accuse the doctrine of endangered harm of violating the requirement of specificity under criminal law, since the wording of Section 263 (1) of the Criminal Code demands damage to property and not just the occurrence of danger. In addition, this figure leads to an extraordinarily early completion of the deception.

The Federal Constitutional Court , which dealt within the framework of a constitutional complaint with the endangered damage in a conviction for infidelity , emphasized that the figure of endangered damage and the requirement of certainty stand in a tense relationship. Nevertheless, it is basically compatible with the constitution, since in a market economy future expectations can also have a value-building effect. However, the assumption of endangered damage requires that a specifically quantifiable amount can be determined as a financial disadvantage resulting from the endangerment.

Subjective fact

Intent

Pursuant to Section 15 of the Criminal Code, criminal liability for fraud requires that the perpetrator act at least with conditional intent . Any form of intent is sufficient, including contingent intent. The perpetrator must therefore at least have knowledge of the characteristics of the objective facts and approve of the outcome of the crime.

Intention to enrich

In addition, the perpetrator must act with the intention of enriching himself or a third party. This is the case when it is important to him that he or a third party receive a financial advantage from the act.

The desired financial advantage must be of the same material as the financial loss suffered by the victim. The criterion of equality of material expresses the character of the fraud as an offense against property shifting. It is fulfilled if the damage suffered by the victim represents the enrichment of the perpetrator, i.e. the enrichment represents the downside of the damage.

After all, the pecuniary advantage sought must be illegal. This is lacking, for example, if the perpetrator has an enforceable claim against the victim for the financial advantage. It is also not unlawful if someone forges evidence for use in court in order to enforce their own justified claim or to ward off an unfounded claim. With regard to the illegality, the perpetrator must act deliberately. This is lacking when he mistakenly assumes that he is right .

attempt

The criminal liability of attempted fraud follows from Section 263 (2) of the Criminal Code. The perpetrator tries to commit the act by immediately engaging in an act of deception in order to damage the victim's property. Attempted fraud exists, for example, if the perpetrator deceives the victim, but the victim sees through the deception and therefore does not have his or her assets. Correspondingly, if the deception is not noticed by anyone and as a result there is no mistake, which the perpetrator expects (as at a self-service petrol station). On the other hand, there is no immediate attempt at fraud if the perpetrator deceives in order to gain the victim's trust, which he later wants to exploit for fraud. This would require another deception, and thus an intermediate step.

Litigation and sentencing

Official offense

Law enforcement agencies can conduct ex officio investigations into fraud. Fraud is an official offense . No criminal complaint by the injured party is required for criminal prosecution .

However, fraud does not constitute an official offense in only two cases. This is due to the reference in Paragraph 4 to the provisions of Sections 247 and 248 a of the Criminal Code. In these cases, fraud is an absolute claim offense.

According to Section 247 of the Criminal Code, prosecution by the public prosecutor's office requires a criminal complaint if the act is directed against a relative , a guardian or a supervisor . According to Section 248a of the Criminal Code, a criminal complaint is generally required if the act only causes minor financial damage. According to the prevailing opinion, this is up to a damage amount of 50 €. The public prosecutor's office can also investigate without filing a criminal complaint if it considers ex officio intervention to be necessary due to the special public interest in criminal prosecution. In this case it is a relative claim offense .

Rule examples

Section 263 (3) of the Criminal Code regulates the particularly serious case of fraud. Compared to simple fraud, this has a higher penalty range of six months to ten years imprisonment. The existence of a particularly serious case is indicated by several rule examples , in the case of which the law advises the judge to impose a higher sentence.

Commercial or gang behavior, Section 263 Paragraph 3 Sentence 2 Number 1 StGB

A particularly serious case of fraud is usually when the perpetrator commits the fraud as a member of a gang . A gang is a group of at least three people who have come together by a gang agreement for the continued commission of fraud or documentary offenses. The perpetrator acts as a gang member if he commits the respective act on the basis of the gang agreement. Unlike in the case of gang theft, it is not necessary for the perpetrator to commit the act together with another gang member. However, the act must be related to the gang agreement. For example, this can be that the benefits of the individual act should go to the entire gang. Gang membership is a special personal characteristic within the meaning of Section 28 (2) StGB, which is important for assessing the criminal liability of other perpetrators .

Another typical example is the commission of a commercial offense. The offender acts on a commercial basis if he wants to obtain a continuous source of income of not inconsiderable duration and to some extent from repeated commission of fraudulent offenses. The first offense of fraud occurs on a commercial basis if the perpetrator commits it with the intention of further offenses. The professionalism is also a particularly personal characteristic.

Loss of wealth in large amounts or in the case of many people, Section 263 (3) sentence 2 number 2 StGB

Furthermore, Section 263, Paragraph 3 of the Criminal Code names causing a large loss of property as a standard example. The case law assumes such a damage from a loss of 50,000 €. In contrast to simple fraud, due to the term loss used in the standard example, risk damage is not sufficient for this.

It also has an aggravating effect if the perpetrator intends to put a large number of people at risk of loss of assets by continuing to commit fraudulent acts. How many people can be assumed to be a large number is disputed in jurisprudence: sometimes 50 people are considered necessary, sometimes 20, sometimes only ten.

Causing economic hardship, Section 263 (3) sentence 2 number 3 StGB

Another particularly difficult case is usually bringing the victim into economic hardship through the act. This is true when the victim finds himself in such a difficult financial position that he is unable to make a living without the help of third parties.

Abuse of a public official, Section 263, Paragraph 3, Sentence 2, Number 4 of the Criminal Code

A particularly serious case can also be considered if the perpetrator misuses his powers or his position as a public official in order to commit the fraud . Public officials, judges, other office holders and persons who perform public administration tasks are deemed to be public officials in accordance with Section 11 (1) number 2 of the Criminal Code. The standard also covers European public officials. An example of this rule example is the deliberately incorrect exercise of discretion . The official status is a special personal characteristic.

Pretending to be an insured event, Section 263 Paragraph 3 Sentence 2 Number 5 StGB

Finally, Section 263 of the Criminal Code describes faking an insured event under certain circumstances as particularly serious fraud. The offense of this rule example presupposes that the perpetrator commits arson to simulate the insured event or that a ship is sunk or stranded. This rule example is based on the earlier insurance fraud situation , which was abolished with effect from April 1, 1998.

Commercial fraud as a member of a gang that has joined together for the continued commission of acts §§ 263, 264 or 267 to 269

Section 263 (5) of the Criminal Code contains a qualification that increases the range of penalties for fraud to one to ten years. This is the case if the perpetrator acts on a commercial basis and as a member of a gang that has joined forces for the continued commission of criminal offenses according to Sections 263 , 264, 267 , 268 or 269 .

Law competitions

If further offenses are committed in connection with an act according to § 263 StGB, these are in legal competition with fraud . A unit of offense ( Section 52 of the Criminal Code) comes into consideration for offenses that are spatially and temporally related to the act of fraud. This often applies to fraud and forgery. Embezzlement ( § 246 StGB) is formally subsidiary to fraud .

criminology

Recorded cases of all fraud in the years 1987–2016.

Statistics of reported crimes

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

The statistics summarize all fraud offenses ( § 263 - § 265b StGB) in order to differentiate between different facts and types of commission of general fraud ( § 263 StGB). A total of 899,043 frauds were reported in 2016. This group of offenses is one of the most frequently realized groups of offenses, the numerical importance of which is tending to increase further. The development of fraud offenses is measured to a large extent by developments in commercial transactions: Changes in the legal situation or improved protective measures on the part of the victims can prevent variants of the fraud or at least make it appear unattractive for the perpetrators.

The fraud according to § 263 StGB appears in numerous forms with different economic consequences. A numerically frequent group in the offenses within the scope of § 263 StGB are the fraud of goods and commodities credit fraud. The amount of financial damage caused is usually higher, the closer the act is related to economic life. The highest amounts of damage are attributable to fraud in cash credits, business investments and capital investments .

The clearance rate for fraud has been falling for many years. In 2016, 75.0% of all reported frauds were cleared up, which is a decrease of 1.4% compared to the previous year. Legal scholars rate the dark field of fraud as particularly high , since probably only a small fraction of the offenses are reported. The reason for this is presumed to be that, for various reasons, victims often do not want the fraud to become known. In addition, frauds often remain hidden from their victims.

In his study on the development of violent crime, which also increased significantly in the years between 1960 and 2000 despite other trends at times, the sociologist and at times researcher at the Federal Criminal Police Office, Christoph Birkel, made a connection to globalization processes and the associated economization of society. The emphasis on monetary success promotes excessive individualism, which increases offenses such as fraud, bribery and other white-collar crime as well as violent delinquency. Although the two groups of perpetrators are quite different, Birkel presents them as opponents of the same social changes. For some they encouraged the willingness to illegally enrich themselves with the help of the offenses mentioned, for others to defend themselves with - as Birkel calls it - "compensatory-expressive violence".

Police crime statistics for fraud 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 358.493 586.3 20,196 (5.6%) 90.7%
1988 368,776 602.2 22,095 (6.0%) 89.9%
1989 401.352 650.3 36,050 (9.0%) 91.2%
1990 363,888 580.6 24,013 (6.6%) 90.0%
1991 371,542 571.6 20,770 (5.6%) 87.6%
1992 407,492 619.6 20,354 (5.0%) 84.6%
1993 528.410 652.6 25,437 (4.8%) 81.2%
1994 587.423 722.2 32,961 (5.6%) 79.0%
1995 623.182 764.3 30,279 (4.9%) 78.6%
1996 648,650 792.8 31,324 (4.8%) 80.9%
1997 670.845 818.0 32,367 (4.8%) 81.1%
1998 705.529 859.8 30,034 (5.5%) 82.1%
1999 717.333 874.4 36,317 (5.1%) 82.7%
2000 771.367 938.8 36,240 (4.7%) 79.9%
2001 793.403 964.5 38,487 (4.9%) 79.4%
2002 788.203 956.1 39,301 (5.0%) 79.3%
2003 876.032 1,061.4 42,959 (4.9%) 79.5%
2004 941.859 1,141.2 49,504 (5.3%) 81.4%
2005 949.921 1,151.4 55,006 (5.8%) 83.1%
2006 954.277 1,157.6 56,384 (5.9%) 83.8%
2007 912.899 1,109.0 58,292 (6.4%) 83.3%
2008 877.906 1,079.9 60,432 (6.8%) 81.7%
2009 955.804 1,165.6 75,794 (7.5%) 81.3%
2010 968.162 1,183.5 79,584 (8.2%) 79.9%
2011 934,882 1,143.6 81,122 (8.1%) 78.3%
2012 958.515 1,171.2 90,047 (9.4%) 77.4%
2013 937.891 1,164.7 89,576 (9.6%) 76.2%
2014 968.866 1,199.6 88,098 (9.1%) 76.8%
2015 966.326 1,190.1 90,079 (9.3%) 76.4%
2016 899.043 1,094.0 87,944 (9.8%) 75.0%
2017 910.352 1,103.2 98,075 (10.8%) 73.7%

Prosecution

Simple fraud is usually dealt with by the protection police, more serious cases by the criminal police. Certain serious cases of fraud can also count as economic crime . This is e.g. B. the case if a criminal chamber is responsible as a commercial criminal chamber in accordance with § 74c para. 1 sentence 1 GVG within the framework of the first instance . These are usually chambers of the regional court.

Related facts

Computer fraud, § 263a StGB

The offense of computer fraud was added to the Criminal Code in 1986 as Section 263a . With it, the legislature responded to a criminal liability loophole that resulted from the increasing use of electronic data processing systems in business transactions: If such a system was outwitted in a fraud-like manner, for example by introducing incorrect data, criminal liability for fraud was ruled out, since a computer is different from a computer Man cannot be subject to error. The objective fact of fraud was therefore not fulfilled.

Obtaining benefits, § 265a StGB

The offense of fraudulent performance, standardized in Section 265a of the Criminal Code, protects the assets 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. Like computer fraud, this standard closes a criminal liability loophole for fraud resulting from the increased use of mechanical controls and devices instead of personnel in mass transit.

Subsidy and investment fraud, §§ 264–264a StGB

The facts of subsidy fraud ( Section 264 of the Criminal Code) and investment fraud ( Section 264a of the Criminal Code) include deception in the context of a subsidy award procedure and the provision of incorrect information with regard to the valuation of capital investments under penalty. Such acts typically precede fraud. With the help of the facts, the legislature aims to make the creation of the basis for fraud a criminal offense, since proving such fraud often involves considerable difficulties. Therefore, the standards do not allow for property damage. From a systematic point of view, these are abstract high-risk offenses .

Insurance abuse, § 265 StGB

The insurance fraud regulated in Section 265 of the Criminal Code criminalizes acts that precede insurance fraud , such as removing an insured item. This fact is also an abstract endangering offense.

Sports betting fraud and manipulation of professional sports competitions, §§ 265c, 265d StGB

With effect from April 19, 2017, the legislature created several offenses that deal with fraud in connection with sports betting: Sports betting fraud ( Section 265c StGB) and the manipulation of professional sports competitions ( Section 265d StGB). These aim to protect property and the integrity of sport.

The norms deal with the unlawful influencing of sporting events by participating athletes, coaches and law enforcement officers. Both norms criminalize manipulating the competition and motivating another to do such an act. The legislature wanted to use the facts to capture situations that typically precede fraud, as the proof of subsequent fraud is often associated with great difficulties. Therefore § 265c and § 265d StGB waive the occurrence of financial loss . It is therefore an abstract endangered crime.

Criminal tax law

The deception to receive social benefits falls under the general fraud offense of § 263 StGB. On the other hand, the criminal liability of deceiving the tax authorities about facts relevant to tax law is regulated in the tax code (AO), especially in the case of tax evasion ( Section 370 AO).

Legal situation in other states

In the criminal law of Austria is fraud in § 146 of the Criminal Code punishable. This norm has only been designed as a property offense since 1975. In terms of content, § 146 StGB largely corresponds to the German § 263 StGB. In Swiss criminal law , fraud is regulated in Article 146 of the Criminal Code and also has great parallels to Section 263 of the Criminal Code. However, the offense also requires that the perpetrator acts fraudulently. This criterion is intended to exclude cases in which the victim could have avoided his error with a minimum of reasonable caution. Fraud in the Scandinavian legal systems is similar to German law.

In contrast to the German penal norm, the criminal offense of England and Wales waives the occurrence of financial loss. Instead, it is sufficient for the presumption of fraud if the perpetrator seeks the occurrence or the risk of such occurrence. Some legal scholars therefore see this standard as an abstract endangering offense . According to Scottish law , the success of the crime in the form of a worse position for the victim is necessary, but this does not have to be related to property.

literature

  • Stephan Beukelmann: § 263 . In: Bernd von Heintschel-Heinegg (Hrsg.): Beckscher Online Comment StGB , 35th Edition 2017.
  • Gunnar Duttge: § 263 . In: Dieter Dölling, Gunnar Duttge, Dieter Rössner, Stefan König (eds.): Entire criminal law: StGB - StPO - ancillary laws . 4th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-2955-5 .
  • Thomas Fischer : Criminal Code with subsidiary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 263.
  • Roland Hefendehl: § 263 . 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 .
  • Urs Kindhäuser: § 263 . In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  • Kristian Kühl: § 263 . In: Kristian Kühl, Martin Heger: Criminal Code: Comment . 29th, revised edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 .
  • Walter Perron: § 263 . In: Adolf Schönke, Horst Schröder, Albin Eser (eds.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  • Frank Saliger: § 263 . In: Holger Matt, Joachim Renzikowski (Ed.): Criminal Code: Comment . Vahlen, Munich 2013, ISBN 978-3-8006-3603-7 .
  • Helmut Satzger: § 263 . In: Helmut Satzger, Wilhelm Schluckebier, Gunter Widmaier (Ed.): Criminal Code: Commentary . 3. Edition. Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28685-7 .
  • Klaus Tiedemann: § 263 . 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 .

Web links

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

Individual evidence

  1. ↑ Federal Law Gazette 2017 Part I No. 22, issued on April 21, 2017, p. 872.
  2. ↑ Thomas Fischer : Penal Code with ancillary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 263, Rn. 3.
  3. ↑ Bernd Hecker : Criminal product advertising in the light of Community law . Mohr Siebeck, Tübingen 2001, ISBN 3-16-147593-3 , pp. 228 .
  4. ↑ a b c d e f Urs Kindhäuser: § 263 , Rn. 1-7. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  5. ↑ a b Walter Perron: § 263 , Rn. 2. In: Adolf Schönke, Horst Schröder, Albin Eser (eds.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  6. ↑ Klaus Tiedemann: Before §§ 263 ff , Rn. 12-15. 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 .
  7. ↑ Klaus Tiedemann: Before §§ 263 ff , Rn. 1-2. 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 .
  8. ↑ Jörg Eisele: The standard example method: offense or sentence solution? In : Juristische Arbeitsblätter 2006, p. 309 (309-310).
  9. ↑ Klaus Tiedemann: Before §§ 263 ff , Rn. 3-7. 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 .
  10. ↑ a b 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. 3.
  11. ↑ a b Kristian Kühl: § 263 , Rn. 6. In: Kristian Kühl, Martin Heger: Criminal Code: Comment . 29th, revised edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 .
  12. ↑ Stephan Beukelmann: § 263 , Rn. 3. In: Bernd von Heintschel-Heinegg (Ed.): Beckscher Online Commentary StGB , 30th Edition 2016.
  13. ↑ BGHSt 15, 24 (26).
  14. ↑ Thomas Fischer : Penal Code with ancillary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 263, Rn. 8th.
  15. ^ District Court Mannheim, judgment of April 30, 1992, file number (12) 4 Ns 80/91 . In: Neue Juristische Wochenschrift 1993, p. 1488 f.
  16. ↑ Urs Kindhäuser: § 263 , Rn. 77. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  17. ↑ Thomas Fischer : Penal Code with ancillary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 263, Rn. 9.
  18. ^ Higher Regional Court Karlsruhe, judgment of June 6, 2002, file number 1 Ss 277/01 . In: BeckRS 2002, 30264095.
  19. ↑ Cologne Higher Regional Court, decision of May 14, 2013, file number III-1 RVs 67/13 . In: New Journal for Criminal Law 2014, p. 329.
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  21. ↑ 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. 2.
  22. ↑ Decisions of the Reich Court in Criminal Matters, Volume 64, p. 347.
  23. ↑ BGHSt 12, 347 .
  24. ↑ 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. 14th
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  26. ↑ a b c d Cologne Higher Regional Court, decision of January 22, 2002, file number Ss 551/01 - 2/02. In: Neue Juristische Wochenschrift 2002, p. 1059.
  27. ↑ BGHSt 58, 102 (106).
  28. ↑ Bernd Hartmann, Holger Niehaus: On the criminal classification of betting manipulation in football . In: Legal worksheets 2006, p. 434.
  29. ↑ Stefan Grotz: The limits of the state punitive power . In: Journal for Legal Studies 2008, p. 243 (249–250).
  30. ^ Mathias Jahn: Comments on OLG Stuttgart - 2 Ws 33/11 . In: Legal Training 2012, p. 181.
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  32. ↑ BGHSt 8, 289 .
  33. ↑ BGH, judgment of March 5, 2014, 2 StR 616/12 = Neue Juristische Wochenschrift 2014, p. 2595.
  34. ↑ Bernd Hecker: Fraud through misleading design of a website . In: Legal Training 2014, p. 1046.
  35. ^ Christian Jäger: Criminal liability when calling . In: Legal worksheets 2014, p. 630.
  36. ^ Rudolf Rengier: Criminal Law Special Part I: Property offenses . 18th edition. CH Beck, Munich 2016, ISBN 978-3-406-68816-4 , § 13, Rn. 14b.
  37. ↑ Cologne Higher Regional Court, decision of January 16, 1987, file number Ss 754/86 . In: Neue Juristische Wochenschrift 1987, p. 2527.
  38. ^ Rudolf Rengier: Criminal Law Special Part I: Property offenses . 18th edition. CH Beck, Munich 2016, ISBN 978-3-406-68816-4 , § 13, Rn. 29
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  40. ↑ BGHSt 46, 196 (202-203).
  41. ↑ BGHSt 39, 392 (399).
  42. ↑ Otfried Ranft: No fraud through fraudulent use of an incorrect booking - BGH, NJW 2001, 453 . In: Juristische Schulung 2001, p. 854 (855).
  43. ^ Higher Regional Court of Celle, order of February 9, 2010 32 Ss 205/09 . In: New Journal for Criminal Law Case Law Report 2010, p. 207.
  44. ↑ 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. 25th
  45. ↑ BGHSt 2, 325 .
  46. ↑ Kristian Kühl: § 263 , Rn. 18. In: Kristian Kühl, Martin Heger: Criminal Code: Commentary . 29th, revised edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 .
  47. ↑ Roland Hefendehl: § 263 , Rn. 228. 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 .
  48. ↑ Bernd Hecker: Comment on BGH 4 StR 632/11 . In: Legal Training 2012, p. 1138.
  49. ↑ Bernd von Heintschel-Heinegg: Comment on LG Essen 4 StR 632/11 . In: Legal worksheets 2012, p. 305.
  50. ↑ BGH, judgment December 5, 2002, 3 StR 161/02 = Neue Zeitschrift für Strafrecht 2003, p. 313.
  51. ↑ Thomas Fischer : Penal Code with ancillary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 263, Rn. 55.
  52. ↑ BGHSt 34, 199 (201).
  53. ↑ Jörg Eisele: On the criminal liability of so-called "cost traps" on the Internet . In: New Journal for Criminal Law 2010, p. 193 (194).
  54. ↑ BGHSt 33, 244 (249–250).
  55. ^ Rudolf Rengier: Criminal Law Special Part I: Property offenses . 18th edition. CH Beck, Munich 2016, ISBN 978-3-406-68816-4 , § 13, Rn. 46.
  56. ^ Rudolf Rengier: Criminal Law Special Part I: Property offenses . 18th edition. CH Beck, Munich 2016, ISBN 978-3-406-68816-4 , § 13, Rn. 48.
  57. ↑ Roland Hefendehl: § 263 , Rn. 9. 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 . .
  58. ↑ BGHSt 14, 170 (171).
  59. ↑ BGHSt 58, 205 .
  60. ↑ BGHSt 14, 170 (172).
  61. ↑ 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. 42.
  62. ↑ Stephan Beukelmann: § 263 , Rn. 32. In: Bernd von Heintschel-Heinegg (Hrsg.): Beckscher Online-Comment StGB , 30th Edition 2016.
  63. ↑ BGHSt 2, 364 (365).
  64. ↑ BGHSt 48, 322 .
  65. ↑ Stephan Beukelmann: § 263 , Rn. 41. In: Bernd von Heintschel-Heinegg (Hrsg.): Beckscher Online Comment StGB , 30th Edition 2016
  66. ↑ Roland Hefendehl: § 263 , Rn. 422. 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 .
  67. ↑ Stephan Beukelmann: § 263 , Rn. 42. In: Bernd von Heintschel-Heinegg (Ed.): Beckscher Online Commentary StGB , 30th Edition 2016
  68. ↑ BGH, judgment of April 28, 1987, 5 StR 566/86 = New Journal for Criminal Law 1987, 407.
  69. ↑ BGH, judgment of August 1, 2013, 4 StR 189/13 = New Journal for Criminal Law 2013, p. 710.
  70. ↑ 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 .
  71. ↑ BGHSt 41, 198 .
  72. ↑ BGHSt 17, 205 .
  73. ↑ BGHSt 5, 365 .
  74. ↑ BGHSt 18, 221 (223).
  75. ↑ Erik Kraatz: attempted fraud in the case of indirect perpetrators . In: Jura 2007, p. 531.
  76. ^ Paul Krell: Problems of litigation fraud . In: Juristische Rundschau 2012, p. 102.
  77. ↑ BGHSt 18, 221 .
  78. ↑ 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. 54.
  79. ↑ BGHSt 18, 221 (223-224).
  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. 46.
  81. ↑ Rudolf Rengier: "Triangular blackmail" equals "triangular fraud"? In: JuristenZeitung 1985, p. 565.
  82. ↑ Urs Kindhäuser, Sonja Nikolaus: The offense of fraud (§ 263 StGB) in JuS 2006, 293–298.
  83. ↑ Knut Amelung: Errors and doubts of the deceived in fraud . In: Goldtdammer's Archive 1977, p. 14.
  84. ↑ Harro Otto: To differentiate between theft, fraud and blackmail in the tortious procurement of other people's things . In: Journal for the entire criminal law science 1967, pp. 81–85.
  85. ↑ 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. 53.
  86. ↑ Helmut Satzger: § 263 , Rn. 203. In: Helmut Satzger, Wilhelm Schluckebier, Gunter Widmaier (ed.): Criminal Code: Commentary . 3. Edition. Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28685-7 .
  87. ↑ Urs Kindhäuser: § 263 , Rn. 226. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  88. ↑ BGHSt 30, 388 (390).
  89. ↑ BGHSt 53, 199 (201-202).
  90. ^ Rudolf Rengier: Criminal Law Special Part I: Property offenses . 18th edition. CH Beck, Munich 2016, ISBN 978-3-406-68816-4 , § 13, Rn. 122-127.
  91. ↑ Hendrik Schneider, Claudia Reich: Billing fraud through "Upcoding" . In: Online Journal for Supreme Court Jurisprudence 2012, p. 267.
  92. ↑ Alexander Badle: Fraud and Corruption in the Health Care System - A field report from the public prosecutor's office . In: Neue Juristische Wochenschrift 2008, p. 1028 (1032-1033).
  93. ↑ BGHSt 16, 220 .
  94. ^ Rudolf Rengier: Criminal Law Special Part I: Property offenses . 18th edition. CH Beck, Munich 2016, ISBN 978-3-406-68816-4 , § 13, Rn. 162.
  95. ↑ BGHSt 21, 384 .
  96. ↑ 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. 63.
  97. ↑ Stephan Beukelmann: § 263 , Rn. 59. In: Bernd von Heintschel-Heinegg (Ed.): Beckscher Online Commentary StGB , 30th Edition 2016.
  98. ↑ Adriano Teixeira: The individual damage impact in fraud . In: Journal for international criminal law dogmatics 2016, p. 307 (308).
  99. ↑ BGHSt 16, 321 .
  100. ^ BGH, judgment of February 24, 1983, file number 1 StR 550/82 = Neue Juristische Wochenschrift 1983, p. 1917.
  101. ↑ Cologne Higher Regional Court, judgment of January 27, 1976, file number Ss 288/75 . In: Neue Juristische Wochenschrift 1976, p. 1222.
  102. ↑ BGH, judgment of 10 November 1994, 4 StR 331/94 = Neue Juristische Wochenschrift 1995, p. 539.
  103. ↑ Helmut Satzger: Problems of damage in fraud . In: Jura 2009, p. 524.
  104. ↑ BGH, judgment of January 26, 2006, 5 StR 334/05 = Neue Zeitschrift für Strafrecht 2006, p. 624.
  105. ↑ BGHSt 31, 93 (95).
  106. ↑ 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. 69.
  107. ↑ Harald Winkler: The concept of wealth in fraud and the constitutional requirement of certainty . Peter-Lang-Verlagsgruppe, Pieterlen 1995, ISBN 3-631-48084-9 , p. 79 .
  108. ↑ 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. 59-60.
  109. ↑ Walter Perron: § 263 , Rn. 143. In: Adolf Schönke, Horst Schröder, Albin Eser (ed.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  110. ↑ Jens Sickor: The so-called "damage- equivalent risk to property" in the case of fraud and infidelity . In: Legal worksheets 2011, p. 109.
  111. ↑ BGHSt 58, 205 .
  112. ↑ BGHSt 58, 102 .
  113. ↑ Dominik Waszcynski: Enclosure-relevant problem areas of property damage in § 263 StGB . In: Juristische Arbeitsblätter 2010, p. 251 (254).
  114. ↑ BGHSt 45, 1 (11-12).
  115. ↑ Urs Kindhäuser: § 263 , Rn. 324. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  116. ↑ BGHSt 33, 244 (245).
  117. ↑ BGH, judgment of January 16, 1992, 4 StR 509/91 = New Journal for Criminal Law 1992, p. 233.
  118. ↑ Moritz Begemeier, John Woelfel: fraud damage despite acquisition in good faith? In: Legal Training 2015, p. 307.
  119. ↑ RGSt 73, 61 (63).
  120. ↑ BGHSt 3, 370 (372).
  121. ↑ BGH, decision of January 15, 2003, 5 StR 525/02 = criminal defense lawyer 2003, p. 447.
  122. ↑ Dominik Waszcynski: Enclosure-relevant problem areas of property damage in § 263 StGB . In: Juristische Arbeitsblätter 2010, p. 251 (255).
  123. ↑ BVerfGE 126, 170 (223-226).
  124. ↑ BVerfGE 126, 170 (185, 215).
  125. ↑ BVerfGE 130, 1 (42).
  126. ↑ Walter Perron: § 263 , Rn. 165. In: Adolf Schönke, Horst Schröder, Albin Eser (eds.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  127. ↑ Kristian Kühl: Criminal Law General Part . 7th edition. Vahlen, Munich 2012, ISBN 978-3-8006-4494-0 , § 5, Rn. 43.
  128. ↑ Petra Wittig: The intention of illegal enrichment . In: Juristische Arbeitsblätter 2013, p. 401 (402).
  129. ↑ BGHSt 6, 115 (116).
  130. ↑ Walter Perron: § 263 , Rn. 168. In: Adolf Schönke, Horst Schröder, Albin Eser (eds.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  131. ^ Rudolf Rengier: Criminal Law Special Part I: Property offenses . 18th edition. CH Beck, Munich 2016, ISBN 978-3-406-68816-4 , § 13, Rn. 246.
  132. ↑ Urs Kindhäuser: § 263 , Rn. 372. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  133. ↑ BGHSt 42, 268 .
  134. ^ Higher Regional Court of Munich: 4 St RR 135/06 . In: New Journal for Criminal Law 2007, p. 157.
  135. ↑ BGHSt 42, 268 (272).
  136. ↑ BGH, decision of July 9, 2003, 5 StR 65/02 = New Journal for Criminal Law 2003, p. 663 (664).
  137. ↑ BGHSt 37, 294 .
  138. ↑ Christian Jäger: Note on LG Augsburg 1 StR 540/10 . In: Legal worksheets 2011, p. 390 (391).
  139. ^ Higher Regional Court Zweibrücken: 1 Ss 266/99 . In: New Journal for Criminal Law 2000, 536
  140. ↑ a b Frank Saliger: § 263 , Rn. 318-319. In: Holger Matt, Joachim Renzikowski (Ed.): Criminal Code: Comment . Vahlen, Munich 2013, ISBN 978-3-8006-3603-7 .
  141. ↑ BGH, decision of January 13, 2005, 3 StR 473/04 = New Journal for Criminal Law 2005, p. 567.
  142. ^ Frank Saliger: § 263 , Rn. 316-317. In: Holger Matt, Joachim Renzikowski (Ed.): Criminal Code: Comment . Vahlen, Munich 2013, ISBN 978-3-8006-3603-7 .
  143. ↑ Klaus Tiedemann: § 263 , Rn. 296. 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 .
  144. ↑ BGHSt 48, 360 .
  145. ↑ Walter Perron: § 263 , Rn. 188c. In: Adolf Schönke, Horst Schröder, Albin Eser (eds.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  146. ^ Rudolf Rengier: Criminal Law Special Part I: Property offenses . 18th edition. CH Beck, Munich 2016, ISBN 978-3-406-68816-4 , § 13, Rn. 278.
  147. ^ Wolfgang Joecks, Christian Jäger: Criminal Code: Study Commentary . 12th edition. CH Beck, Munich 2018, ISBN 978-3-406-67338-2 , § 263, Rn. 186.
  148. ↑ Urs Kindhäuser: § 263 , Rn. 396. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  149. ↑ Klaus Tiedemann: § 263 , Rn. 299. 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 .
  150. ↑ Urs Kindhäuser: § 263 , Rn. 397. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  151. ^ Frank Saliger: § 263 , Rn. 325. In: Holger Matt, Joachim Renzikowski (Ed.): Criminal Code: Commentary . Vahlen, Munich 2013, ISBN 978-3-8006-3603-7 .
  152. ↑ Klaus Tiedemann: § 263 , Rn. 302. 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 .
  153. ^ Frank Saliger: § 263 , Rn. 341-342. In: Holger Matt, Joachim Renzikowski (Ed.): Criminal Code: Comment . Vahlen, Munich 2013, ISBN 978-3-8006-3603-7 .
  154. ↑ a b PKS time series 1987 to 2017. (CSV) Federal Criminal Police Office, May 8, 2018, accessed on October 10, 2018 .
  155. ↑ Police crime statistics. Federal Criminal Police Office, accessed on September 23, 2017 .
  156. ↑ a b c Police crime statistics 2016. (PDF) Federal Ministry of the Interior, p. 8 , accessed on November 15, 2017 .
  157. ↑ Thomas Fischer : Penal Code with ancillary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 263, Rn. 4th
  158. ↑ a b Urs Kindhäuser: § 263 , Rn. 9. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  159. ↑ Roland Hefendehl: § 263 , Rn. 42 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 .
  160. ↑ Klaus Tiedemann: Before § 263 , Rn. 1, 9. 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 .
  161. ↑ a b Roland Hefendehl: § 263 , marginal no. 43–46 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 .
  162. ^ Ulrich Eisenberg, Ralf Kölbel: Kriminologie: Ein Lehrbuch . 7th edition. Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-153013-5 , § 45, Rn. 117.
  163. ↑ Klaus Tiedemann: Before § 263 , Rn. 8. 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 .
  164. ↑ Christoph Birkel: The development of violent crime in Germany: Theoretical explanatory approaches in an empirical comparison . Springer VS, Wiesbaden 2015, ISBN 978-3-658-03042-1 , p. 96 ( limited preview in the Google book search): “The advancing economization and the emphasis on monetary success as a (positional) cultural goal ('culture of competition') in connection with an increasingly unequal access to legitimate means to achieve this goal create lasting a situation in which anomie at a social level and pressure to deviate at an individual level are normal. The consequence is an increase in instrumental crime among those who have access to illegal means to achieve the monetary success target (fraud, bribery, other white-collar crime) and compensatory-expressive violence (in addition to a general tendency to delinquency caused by feelings of deprivation (Thome and Birkel 2007, p. 309f.) For people who are denied access to legitimate and illegitimate means. "
  165. ↑ Wolfgang Mitsch: Criminal Law, Special Part 2: Property Offenses . 3. Edition. Springer Science + Business Media, Berlin 2015, ISBN 978-3-662-44934-9 , pp. 393 .
  166. ↑ 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 .
  167. ↑ Uwe Hellmann: § 264 , Rn. 1-11; Section 264a , Rn. 1-11. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  168. ↑ a b Folker Bittmann, Thomas Nuzinger, Markus Rübenstahl: § 265c , Rn. 1-12. In: Bernd von Heintschel-Heinegg (Hrsg.): Beckscher Online Comment StGB , 35th Edition 2017.
  169. ↑ Klaus Tiedemann: Before § 263 , Rn. 56. 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 .
  170. ↑ BGE 72 IV 126 (128).
  171. ↑ Klaus Tiedemann: Before § 263 , Rn. 52. 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 .
  172. ↑ Klaus Tiedemann: Before § 263 , Rn. 81. 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 .
  173. ↑ Antje du Bois-Pedain: The criminal liability of unfaithful behavior in English law: "Fraud by abuse of position" and other relevant criminal provisions . In: Journal for the entire criminal law science 2010, p. 325 (332).
  174. ↑ Klaus Tiedemann: Before § 263 , Rn. 87-88. 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 .
  175. ↑ Klaus Tiedemann: Before § 263 , Rn. 91. 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 .
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