Assumption of use
The presumption of use ( Latin: furtum usus , from furtum , theft and usus , use) denotes a temporary unauthorized (and therefore unauthorized) use of movable property with the temporary breaking of third-party custody.
What is meant is that the thing is used without authorization, but is later returned to the authorized person. The perpetrator does not intend to appropriate the thing, otherwise theft or embezzlement would exist, but rather to play it back into the hands of the owner or the rightful owner after use . At the time of removal, there is subjectively the willingness to return.
Since the expropriation component that characterizes the theft and embezzlement is missing, the presumption of use is basically unpunished, but falls under prohibited individual power i. S. d. § 858 BGB. Due to the opposing will of the entitled party, the presumption of use is always to be regarded under civil law as an unlawful infringement of property in accordance with §§ 903 , 823 (1) BGB and accordingly leads to claims for surrender and , if necessary, claims for damages .
Exceptions
However, the German Criminal Code (StGB) makes two exceptions with regard to the general impunity for presumption of use . The unauthorized use of vehicles ( § 248b StGB), punishable by a fine or imprisonment of up to three years, is just as punishable as the presumption of use of pawns by public pawnbrokers ( § 290 StGB). Paragraph 2 of Section 248b of the Criminal Code even orders criminal offenses against trial .
It is also punishable if an item is deprived of its (complete) substance or material value, for example when using toilet paper. If this happens without justification , there is no furtum usus , but either theft, embezzlement or damage to property . Comparable is the case that a new battery is taken along and later brought back "used up", which in this case is punishable by the withdrawal of electrical energy according to § 248c StGB .
The column old for new represents another exceptional case : weakened to the example, someone takes a new book off the shelf from the bookstore in order to bring it back afterwards "read through". For the bookseller, the book has only used value. Here, too, there is criminal behavior.
Ultimately, the loss does not necessarily have to mean a purely economic loss of value. An economic and temporal devaluation can also trigger criminal liability. Example: A takes the lawnmower away from B in spring and gives it back to him in late autumn.
Austria
For the legal situation in Austria see permanent deprivation of property .
Switzerland
The Swiss Road Traffic Act (Art. 94 SVG) differentiates between theft for the use of motor vehicles (section 1), "entrusted" motor vehicles (section 3) or bicycles (section 4).
Individual evidence
- ↑ Kudlich, Hans: Cases on criminal law, general part, 3rd edition, Munich 2018, p. 82 a. E.
- ↑ Joachim Vogel: Leipzig Commentary on the Criminal Code. Vol. 8: §§ 242 to 262 . Ed .: Heinrich Wilhelm Laufhütte, Joachim Vogel. De Gruyter, Berlin 2010, ISBN 978-3-89949-785-4 , p. 115 ff . (RN 153 ff). ( limited preview in Google Book search)
