Financial agent

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A financial agent (also financial courier or financial manager ) within the meaning of the Payment Services Supervision Act (ZAG) is any legal or natural person who, as an independent trader, carries out payment services on behalf of a payment institution or e-money institution. The agent's actions are attributed to the payment institution or e-money institution ( Section 1 (9) ZAG). The payment services also include financial transfer transactions (Section 1, Paragraph 1, Clause 2, No. 6 ZAG).

The operation of the financial transfer business requires the prior approval of BaFin ( Section 10 (1) ZAG).

More recently, the abusive activity as a financial agent has become an application of money laundering ( § 261 StGB). The organized crime thereby acts in the form of so-called. Triangular transactions .

Historical financial agents

Working as a financial agent was originally an honorable trade, as the following examples show. In the 16th century, Sir Thomas Gresham (1519–1579) worked as a financial agent for the English government and helped the sluggish treasury out of financial difficulties by procuring loans , including from the Fuggers in Augsburg . Through his financial experience, Gresham became an advisor to King Edward VI. and also of Queen Elizabeth I.

The Portuguese king Affonso V employed Isaac Abravanel (1437–1509) as treasurer and financial agent. After the king's death, the fundraiser fled to Castile , where he soon switched to a related profession as a royal Spanish tax farmer .

The textile industrialist Hans Heinrich Lochmann (1511–1576) also worked in Zurich as the financial agent of the French king.

Giacomo Casanova was first as director of the state lottery in 1757 and twice in 1758 in a secret finance mission in Holland for France as a fundraiser.

The Teutonic Order used the brothers Baruch and Moyses Simon as financial agents in the middle of the 18th century . Both settled in Bad Mergentheim and also helped the local Jewish community.

Cities also gratefully accepted help in finding sources of money. It is known that Jakob Baruch , the father of Ludwig Börne (1786–1837), acted as the financial agent for the city of Frankfurt am Main .

Financial agent Jacques de Reinach played a dubious role as fundraiser for the French Panama Canal Society around Ferdinand de Lesseps . Reinach admitted that he had used funds of 3 million francs from the later bankrupt company to bribe newspapers. However, the affair was not resolved because the police found him dead in his apartment.

The American banker John Pierpont Morgan junior acted as the "official financial agent of the Allies" during the First World War .

The Bank of Cyprus is still the banker and financial agent of the Cypriot government today .

Form of commission of money laundering

Origin of the money

The money that is supposed to be "laundered" by the financial agent often comes from people who have themselves become victims of a crime.

These can be accounts of other private individuals whose account access data has got into the hands of criminals through phishing or other account manipulation. By spying on the account data, the people behind the scenes make themselves liable to prosecution according to § 202a StGB. Since the surrender of such data endangers the assets of the victim, fraud according to § 263 StGB comes into consideration in individual cases . Using the data as computer fraud is prohibited under Section 263a of the German Criminal Code.

While the perpetrators are able to withdraw the victim's money, they don't want to simply deposit it into their own private accounts. A "financial agent" is required to cover up the money. For this the (pre-) spend perpetrator as a serious, often foreign entrepreneurs and advertise via e-mail or by Internet - spam German bank customers as potential financial agents, and "Escrow Agent", "Trust Agent", "Delivery Manager", "Financial Transaction Manager" , "Project Coordinator", "Process Manager" or "Regional Manager for Payment Processing" . Phishing, pharming or skimming victims' money is then transferred to the financial agent's account. They were instructed to withdraw most of the money in cash and to transfer it abroad via a cash transfer system (regularly Western Union or MoneyGram ). The remaining money can be kept as commission. If the original transfer is revoked by the phishing victim, but the financial agent has already continued to transfer the funds, he is left with the resulting damage.

The money can also come from fraudulent goods, in which the perpetrators offer goods for sale online, but do not deliver any goods after the prospective buyer has paid in advance to the financial agent's account.

If the financial agent knows in advance about the origin of the money, he can be punished as an assistant ( Section 27 of the Criminal Code) or accomplice ( Section 25 (2) of the Criminal Code) of the (preliminary) perpetrator. If he only learns of its origin during or after receiving the money, a criminal liability for money laundering ( § 261 StGB) comes into consideration. If he knowingly passes the money on, he will also prevent punishment ( § 258 StGB) or favor ( § 257 StGB) in favor of the predecessor.

As a rule, however, the financial agent will not worry about the origin of the money. In these cases, however, criminal liability for money laundering is possible. To do this, however, it must be proven to the financial agent that he did not recognize frivolously that the money originated from an illegal act ( Section 261 (5) StGB). If he only knew that the money was somehow illegally obtained, the acceptance and storage are not punishable. However, by sending the money abroad, he would thwart punishment (Section 258 StGB) or favor (Section 257 StGB).

Financial agent and money launderer without wanting or knowing

It is not easy for organized crime to acquire financial agents. The following method was therefore developed: Criminal S books, for example, a private holiday accommodation and receives the landlord V's bank details. S sends money from the account of the victim G, to which he has gained access through phishing , to the account of V. Shortly afterwards, S contacts V, cancels the holiday accommodation and demands the money back. The money can be sent to a completely different account. By transferring the money to another account, V involuntarily became a financial agent and money launderer.

Goods agent

A variant of the financial agent is the goods or package agent . The recruited agent forwards packages with illegally acquired content. The authorities warn against accepting offers to work as a goods agent.

Civil liability

The courts grant the victim of the predicate offense a claim for damages against the financial agent from the offense ( Section 823 (2) BGB in conjunction with Section 261 (1), (2) and ( 5) StGB) and from unjust enrichment ( Section 812 (1) sentence 1 BGB) . In the latter case - i.e. liability for enrichment - the (recklessly acting) financial agent is only obliged to pay if the money (or a corresponding equivalent) is still in his possession ( Section 818 (3) BGB).

Search agent on the Internet

The term financial agent also appears in special search programs on the Internet . As news crawlers, these programs scour the data world in the field of financial investments for advantageous offers and display them to the user on the screen.

literature

  • Stefan Werner, in: Hoeren / Sieber / Holznagel, Multimedia-Recht , 37th supplementary delivery (2014), part 13.5, marginal no. 67 ff.
  • Stephan Neuheuser: The criminal liability of holding and forwarding the money obtained through “phishing” , in: New Journal for Criminal Law (NStZ) 2008 (Issue 9), 492–497

Web links

Individual evidence

  1. ↑ Bafin letter on financial transfer business ( Memento of the original dated April 6, 2007 in the Internet Archive ) Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice.  @1@ 2Template: Webachiv / IABot / www.bundesbank.de
  2. ↑ Marco Mayer: Careless money laundering by so-called "financial agents". At the same time, comment on BGH, ruling of September 11, 2014 - 4 StR 312/14 HRRS practical advice, December 2015
  3. ↑ Are all financial agents money launderers? börsenNEWS.de, accessed on June 13, 2017
  4. ↑ Finanzagenten Police crime prevention of the states and the federal government, accessed on June 13, 2017
  5. ↑ Jens Ferner: Criminal liability of financial agents for phishing: When is frivolous money laundering to be assumed?  ( Page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. March 8, 2015@1@ 2Template: Toter Link / Ferner-alsdorf.de  
  6. ↑ Sascha Sebastian: Material requirements and necessary judgments in the case of “frivolous money laundering” by a “financial agent”. At the same time discussion of the BGH decision of September 11, 2014 (4 StR 312/14) , in: Neue Zeitschrift für Strafrecht (NStZ) 2015 (Issue 8), pp. 438–442
  7. ↑ Official warning from BaFin dated May 5, 2005: "BaFin warns against acting as a 'financial agent'". Retrieved May 13, 2013 .
  8. ↑ Renewed official warning BaFin dated 21 November 2011: "BaFin renews its warning against activities as" financial agent. ' " (No longer available online.) Archived from the original on March 5, 2016 , accessed on May 13, 2013 . Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.bafin.de
  9. ↑ Money laundering! Beware of dubious job offers as a "package or goods agent" The Police President in Berlin, accessed on June 13, 2017
  10. ↑ Sascha Sebastian: The protective law property of § 261 StGB, in: Journal for Banking Law and Banking Industry (ZBB) 2014 (Issue 6), pp. 382-390.
  11. ^ Sascha Sebastian: The liability of the "finance agent" according to §§ 812 ff. BGB. At the same time discussion of BGH ruling. December 19, 2012 (VIII ZR 302/11) , in: JURA 2015 (Issue 1), 180–187
  12. ^ LG Krefeld, judgment of September 30, 2016 - 1 S 30/16. Left open by BGH, judgment of December 19, 2012 - VIII ZR 302/11, Rn. 7th