Investment fraud

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As investment fraud is commonly any form understood by fraud, the investors in the capital market deceived and brought intentionally for the purpose of enrichment by the initiators for their savings.

In the legal sense is investment fraud by § 264a of the German penal code (CC) a fraud similar offense in the field of economic crimes , the crime politically the investor protection is used. This is an abstract endangering offense in the run-up to fraud, which does not assume the occurrence of financial damage or a specific financial threat . The offense includes information in prospectuses, representations and reports on assets for a larger group of people. It was introduced into the Criminal Code on August 1, 1986 in the course of the Second Act to Combat Economic Crimes, with the sole purpose of protecting the legal interests of investors' property . In the context of police crime statistics , the offense is recorded as prospectus fraud.

In the colloquial sense u. a. Pyramid schemes , junk real estate ( real estate fraud ) and counterfeit securities (securities fraud) are counted among the investment fraud models, but regularly do not fall under the legal term of capital market fraud . Many offers in the context of the gray capital market represent a gray area , whereby the line between excessively high costs on the one hand and fraud on the other hand is often blurred. Sometimes investment products with conditions that are disadvantageous for consumers and high commission deductions are referred to as legal fraud .

Criminal policy goal and criminal liability in Germany

Investment fraud is punishable under German law in accordance with Section 264a of the Criminal Code. With the offense, a catch-all offense was added to the regular fraud under Section 263 of the Criminal Code, the criminal-political intention of which was primarily to advance the protection of criminal law. In cases of dizzying capital investment offers, the prerequisites for fraudulent entry according to Section 263 StGB may exist, but questions of causality, proof of intent and damage assessment encounter great difficulties. In order to facilitate the verifiability and to offer a more efficient criminal protection of the capital investors, which ultimately serves the functionality of the capital market in general, the criminal liability was moved to the run-up to § 263 StGB: It is punishable to pretend advantageous aspects regarding securities and other capital investment options compared to a larger one Crowd of people. Section 264a of the Criminal Code, however, is not a lex specialis compared to Section 263 of the Criminal Code.

In contrast to the general offense of fraud under Section 263 of the Criminal Code, the offense of Section 264a of the Criminal Code does not presuppose any deception of the investor or his / her excitation of errors, and neither does the occurrence of (mistakenly) financial loss . It is sufficient if, for example, incorrect information is provided in a prospectus or other publicly available presentation, or disadvantageous facts are concealed, insofar as these are likely to influence the investment decision of a potential investor. It is therefore an abstract endangering offense and, in comparison to fraud, an experimental offense raised to the status of an independent offense . The perpetrator “completes” the offense when he has provided the wrong information. The offense ends when the investor has made the cash benefits. In addition, the WpHG counteracts grievances resulting from (off-) exchange trading in securities and derivatives , as there is an obligation to report to BaFin (in particular to protect against insider trading ).

Insofar as damage caused by deceit or error has actually occurred, Section 263 of the Criminal Code applies, which provides for a higher threat of punishment. The description of § 264a StGB as investment fraud is therefore misleading. The also common criminological term prospectus fraud is more appropriate .

The delimitation of the risk offense of capital investment fraud from the property offense of fraud can also be relevant in the right of speech and press law . The Munich Higher Regional Court ruled on a complaint by a real estate fund against the search engine operator Google in 2017 that headings with "suspected fraud" referring to the suspicion of investment fraud were false statements of fact that should be omitted (Az. 18 W 826/17).

Approaches to preventing investment fraud

literature

  • Oliver Borchard: Salary and benefits of § 264a StGB (capital investment fraud) . Cuvillier, Göttingen 2004, ISBN 3-86537-214-7 (also: Dissertation, University of Göttingen, 2004).
  • Volker Krey , Uwe Hellmann , Manfred Heinrich : Criminal law. Special part. Volume 2: Property offenses . 16th edition. W. Kohlhammer Verlag, Stuttgart 2012, ISBN 978-3-17-022362-2 , Rn. 774.
  • Uwe Hellmann: Capital market and financial market criminal law. § 1 Investor Protection: I. Investment fraud (§ 264a StGB) . In: ders., Katharina Beckemper : Commercial criminal law . 4th edition. W. Kohlhammer Verlag, Stuttgart 2013, ISBN 978-3-17-024350-7 , pp. 1-12 (textbook).

Web links

Individual evidence

  1. ↑ a b c Eberhard Dreher, Herbert Tröndle : Penal Code and subsidiary laws. § 264a, CH Beck, Munich 1995, pp. 1332-1336.
  2. ↑ Volker Briegleb: Court: Google must refrain from referring to deleted links . In: Heise Online , June 16, 2017, accessed on March 26, 2018.
  3. ↑ Warning list financial investment: Dubious companies and financial products test.de , January 9, 2015, accessed on January 21, 2015.
  4. ^ Jörg Michael Maier, Ilka Meschkat, Hans-Georg Carny: Vermögensanlagen. Prospectus review and information for consumers. BaFin, October 1, 2013, accessed on February 13, 2018 .