Inferior thing
Low value thing is a term from German criminal law and describes things of insignificant value. Theft and embezzlement of low value items are z. B. prosecuted only at the request of the injured party, unless there is a particular public interest in prosecution.
General
The criminal law reform of January 1975 aimed, among other things, at relieving the law enforcement authorities and the criminal justice system from minor offenses . According to this, the public prosecutor's office can refrain from prosecution in the event of an offense that is directed against someone else's property and is not threatened with a minimum higher penalty, even without the consent of the court, if the damage caused by the act is minor ( Section 153 (1) sentence 2 StPO). While some criminal offenses have been completely abolished, theft of the mouth (Section 370 (1) No. 5 StGB old version) is now one of the theft offenses . The Federal Constitutional Court has made it clear that theft and embezzlement of low-value items are unrestricted cases of application of § § 242 , § 246 StGB; they differ from other thefts within the meaning of Section 242 of the Criminal Code and from embezzlement not in terms of the offense, but only in the way they were dealt with in proceedings.
application
In particular in the case of shoplifting or embezzlement ( Section 248a StGB ), items of low value may be the basis. Most other offenses against property or assets refer to this provision. This is the theft of electricity according to § 248c para. 3 SCC, favored by § 257 para. 4 sentence 2 SCC, stolen goods according to § 259 , para. 2 SCC, fraud by § 263 , para. 4 StGB, fraudulent acquisition of services by Section 265a (3) of the Criminal Code (“fare dodging”), breach of trust according to Section 266 (2) of the Criminal Code and misuse of check and credit cards according to Section 266b (2) of the StGB. For the other qualifications of theft ( § 244 , § 244a StGB), the application of § 248a StGB does not come into consideration. The application for all robbery offenses according to §§ 249-252 , § 255 , § 316a StGB is also excluded.
Demarcation
In the case of low-value items, the question arises of how to distinguish between low-value and non-low-value (valuable) items. The legislature has left this delimitation to case law . Inferiority is an indefinite legal term . It arose from the earlier violation of mouth robbery. The term “minor” damage is mentioned in Section 153, Paragraph 1, Sentence 2 of the Code of Criminal Procedure (StPO), as it is suitable as a measure of the loss of rights that has occurred against third-party assets or property. The question of whether the damage caused by the act is minor is based solely on objective criteria. The demarcation is based on the market value of one thing, the value of several things stolen in an act must be added together. According to a decision by the Federal Court of Justice in 2004, the limit of low value has not yet been reached at least at € 25; according to a judgment of the Frankfurt Higher Regional Court in May 2008, it is € 50; The OLG Hamm had also committed itself to this amount in July 2003 (“43 bars of chocolate”). In January 2000, the OLG Zweibrücken saw the limit at € 50 . In the case of new goods, the price of the goods, and in the case of used goods, the current value . According to the majority view, any error in the context of § 248a StGB is insignificant and can only arise in the affirmation of the special public interest or in the question of the setting according to §§ 153 f. Impact StPO.
Legal consequences
In Section 248a of the Criminal Code, however, no separate criminal offense was created, but an application requirement. The injured party must therefore file a criminal complaint because the offense is not prosecuted ex officio .
On the other hand, if the prosecution authority (usually the public prosecutor's office) affirms a particular public interest in prosecution, the inferiority is no longer relevant. The public prosecutor's office can therefore replace the criminal complaint with the special public interest.
A conviction for serious theft based on a standard example of Section 243, Paragraph 1, No. 1–6 of the Criminal Code is not permitted under Section 243, Paragraph 2 of the Criminal Code if the loot is classified as of low value. This does not apply to the theft of weapons according to Paragraph 1 No. 7 StGB.
Individual evidence
- ↑ The result is that no distinction is made between stealing an apple and a ballpoint pen.
- ↑ BVerfG, judgment of January 17, 1979, file number 2 BvL 12/77
- ↑ BVerfG, decision of August 5, 2020, file number 2 BvR 1985/19 paragraphs 41, 46
- ↑ Harro Otto, Basic Course in Criminal Law , Volume 2, 2005, § 41 Rn. 42 f.
- ↑ BGH, decision of July 9, 2004, file number: 2 StR 176/04 = BeckRS 2004, 7428, beck-online
- ↑ OLG Frankfurt am Main, judgment of May 9, 2008, Az .: 1 Ss 67/08
- ↑ OLG Hamm, judgment of July 28, 2003, Az .: 2 Ss 427/03 = NJW 2003, 3145
- ↑ OLG Zweibrücken, decision of January 18, 2000, Az .: 1 Ss 266/99 = NStZ 2000, 536
- ↑ Petra Wittig in: BeckOK StGB, v. Heintschel-Heinegg 46th edition Status: May 1, 2020, § 248a Rn. 5
- ↑ Olaf Hohmann in: Munich Commentary on the StGB, 3rd edition 2017, § 248a Rn. 14th
- ↑ Kristian Kühl in: Lackner / Kühl, StGB, 29th edition 2018, § 248a Rn. 5
- ↑ Nikolaus Bosch in: Schönke / Schröder Criminal Code, 30th edition 2019, § 248a Rn. 16
- ↑ Urs Kindhäuser in: Kindhäuser / Neumann / Paeffgen, Criminal Code, 5th edition 2017, § 248a Rn. 8th
- ↑ Urs Kindhäuser in Kindhäuser / Neumann / Paeffgen, Criminal Code, 5th edition 2017, § 248a Rn. 1
