Fulfillment Fraud

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The fulfillment fraud is a variant of fraud facts (according to German law § 263 of the Criminal Code ), which is usually in mutual obligations occurs. The financial loss occurs because the victim is deceived in fulfilling an obligation . The damage is determined by comparing the contract law owned by the violated prior to the act of deception with what he actually receives through the performance of the contract. The victim of the fraudulent fulfillment therefore pays more than owed or he receives less than agreed due to his deceptive error, whereby the offense does not depend on whether the contractual execution is objectively "good" or "bad" for the injured party. Fulfillment fraud can also exist if what is owed in terms of value is performed, but the recipient of the service has a right to a reduction in price or similar. is due.

To differentiate: In the case of incoming fraud, there is financial loss if the financial status of the injured party is worse after the conclusion of the contract than before the conclusion of the contract.

It is not uncommon for compliance fraud to be the concealment of hidden defects. Under civil law, it is possible to reverse the contract by exercising warranty rights (especially withdrawal ) or, if the requirements are met, by challenging the declarations of intent , such rights often fail due to their effective enforceability (e.g. due to insufficient solvency of the business partner). In these cases, it is problematic to determine the financial loss. The synallagma is fulfilled under civil law : performance and consideration are exchanged. In the case of fulfillment fraud, the construction of the personal loss impact must therefore often be used. The Federal Court has ruled in the milking machine decision that a financial loss also exists where performance and reward are indeed adequate, but the power can be used or only in parts in accordance with contractual requirements or the victim is pushed to the margins of existence threat .

A spurious fulfillment fraud is supposed to exist if, as in the case of admission fraud, deception is already carried out when the obligation is established, but deception and error continue into the fulfillment phase. The financial loss should then be the balance of the service rendered and the inferior consideration. In these cases, the obligatory transaction to justify the liability and the performance transaction from the liability (contrary to the civil law structure) are considered uniformly.

literature

  • Dreher / Tröndle , Criminal Code and ancillary laws, § 264 a, CH Beck, Munich 1995, § 263 No. 32, 33.
  • Kerstin Klein: The relationship between incoming and compliance fraud . In: Studies on Commercial Criminal Law, Volume 19, Centaurus Verlag, ISBN 3-8255-0390-9
  • Matthias Wahl: The determination of damage in incoming and performance fraud . Duncker & Humblot, 2007, ISBN 978-3-428-12560-9

Individual evidence

  1. ↑ Dreher / Tröndle, Criminal Code and ancillary laws, § 264 a, CH Beck, Munich 1995, § 263 no. 33.
  2. ↑ Example case, BGHSt 12, 347: Delivery of a re-strike instead of a real coin.
  3. ↑ Dreher / Tröndle, Criminal Code and ancillary laws, § 264 a, CH Beck, Munich 1995, § 263 no. 32.
  4. ^ BGH, judgment of August 16, 1961, Az .: 4 StR 166/61 = BGHSt 16, 321
  5. ↑ BGH, judgment of December 21, 1983, Az .: 2 StR 566/83 = BGHSt 32, 211 , 213
  6. ↑ Wessels / Hillenkamp, ​​Criminal Law Special Part / 2, 26th edition 2003, Rn 540.