According to German criminal law, a complete fraud u. a. Pecuniary loss is required ((1) StGB), i.e. an outflow of assets for one party that is not balanced by asset inflows. If there is no pecuniary damage, then there is no complete, but at most attempted fraud, which is usually punished more mildly ( (2) of the Criminal Code). For results-oriented reasons, this is considered undesirable in some constellations, so that the figure of endangered damage was developed by the case law.
Argumentation for hazardous damage
The idea behind the argumentation pattern of endangered damage is the following: In constellations where deceiving the deceiver does not lead to a decrease in assets, but only to a risk of such a decrease, which then does not materialize. Here, the danger, not just the actual reduction in assets, is supposed to represent damage that is sufficient for complete (rather than attempted) fraud.
In a case ruled by the Federal Court of Justice , the deceiver had obtained that the deceived person defer a debt to him. The question was whether the deceived person suffered financial loss. The mere non-payment could not be sufficient for this, since this is the essence of the deferral with which the deceived person agreed. The Federal Court of Justice ruled that the failure to take enforcement measures as a result of the deferral constitutes sufficient damage for the fraud if this leads to a deterioration in the specific prospect of enforcement.
If the threat to assets is a litigation risk ( flaw theory ), at least a loss of assets that can be quantified according to economically comprehensible standards must be ascertained as a result of this litigation risk.
- BGH NStZ 2003, 546
- BGH - 3 StR 115/11
- Schönke / Schröder-Cramer / Perron, StGB (commentary), 28th edition 2010, § 263 No. 143-145.