Entry fraud
The entering into fraud is a particular manifestation of fraud in which the scammer the intention to him from a pretending contract arising obligations at the time of maturity to want to meet.
Purpose of regulation
Own (criminological) designation was created for these types of fraud because it is not punishable by applicable law, liability can not be met, or, more specifically, bills not to pay. The creditor is in principle in these cases, to the civil referred enforce its claims, without the criminal could intervene. An exception is the violation of the maintenance obligation , because this also affects the interests of the general public in a special way. The creditor's payment risk is therefore not only the risk of the debtor's insolvency , but also his fraudulent unwillingness to pay .
The impunity of non-fulfillment of one's own obligations must, however, find its limit where the debtor relies on this effect and therefore first commits himself under civil law. This, in turn, is particularly true if the debtor also knows that he is not in a position to fulfill his contractual obligations at all, i.e. the obligee will not even be successful through civil law, because a debtor's property into which the foreclosure could be pursued , does not exist (non- attachability ).
In Germany, fraudulent entry is a punishable offense under the general offense of fraud ( Section 263 StGB ).
Subsumption
In these cases, however, the debtor's behavior can in fact be subsumed under the general offense of fraud . Anyone who undertakes a contract to provide a certain service (usually, but not necessarily, this service will consist in the payment of a certain sum of money) also expresses their willingness and ability to meet this obligation. Only in trusting this further, implied declaration of willingness and ability to perform will the other contractual partner ultimately actually make advance payments .
If this declaration proves to be incorrect from the outset, then the person making the declaration has committed an act of deception in the sense of the fraudulent nature by deceiving either about the external fact of his ability to perform or the internal fact of his willingness to perform. His contractual partner is therefore subject to an error . This mistake moves the contractual partner to a disposal of assets , which later results in financial loss. The objective fact of fraud is thus fulfilled.
Also subjectively there is a fraud if the perpetrator knew when giving its statement that the other would not do if the real financial situation or the true intentions of the declarant had been known to him.
Legal consequences
According to German criminal law, the act is sanctioned as fraud with a prison sentence of up to five years or a fine .
Consequences
The actual handling of these cases is not easy in forensic practice, however, because the distinction between punishable fraudulent entry and non-punishable non-fulfillment of an obligation is exclusively based on the subjective offense, i.e. only needs to be based on the imagination of the perpetrator: Was he still the perpetrator when the contract was concluded Opinion that he will be able to pay his debts, and if something has changed in his performance or his intention only later, there is no offense, otherwise the offense is fulfilled. However, if the perpetrator has not made a confession, this subjective fact is only possible by inferring from the objective facts about the perpetrator's subjective will. There are high demands on the court's assessment of the evidence because this conclusion is particularly prone to errors.
The question of whether there is fraudulent entry is important, ultimately also for the enforceability of the claim itself: If the claim is recognizable as being uncollectible, many companies file criminal charges on suspicion of fraudulent entry because, if the facts of fraudulent entry can be proven, in addition to the the actual contractual claim is entitled to a claim for damages from an intentional tort , which the debtor cannot evade through the effect of the discharge of residual debt in the context of consumer insolvency proceedings. To do this, the creditor must also pursue his claim as such in insolvency proceedings . Outside of the insolvency proceedings, the obligee can also pledge into the seizure exemption limit.
Individual evidence
- ↑ Urs Kindhäuser: Criminal Law Special Part II . 8 edition. Nomos Verlag, 2014, p. 246.
