Account deletion
Under Kontoplünderung various offenses are related to bank accounts summarized in which the perpetrator without the knowledge or approval of the account holder without authorization on existing balances has or wholly or partly even overdrafts caused, so that the account holder or a third party be harmed by this.
General
In the case of account looting, two groups of cases can generally be distinguished. One group of cases concerns relatives of the Account Owner such as spouses in divorce, cared for or testators and their inheriting relatives. The other group of cases includes criminals who illegally come into possession of account data, systematically bypass or switch off security mechanisms and have the accounts - initially without the knowledge of the account holder.
Looting by relatives
Spouses in divorce
Spouses finance their common life through a joint account. During the divorce, a partner violates the relationship of trust if he ruthlessly clears the joint account almost empty. This is especially true before a separation; then the partners are no longer allowed to withdraw money in their own interest without restriction, at any time and as they wish, because the credit is no longer used for family purposes. If there is credit in a joint account, half of this credit is due to each spouse in case of doubt. As joint creditors, the spouses have a mutual compensation obligation in accordance with Section 428 of the German Civil Code, regardless of their existing property law relationships. The spouses are entitled to equal shares in the internal relationship, unless otherwise agreed.
It doesn't matter who the credit came from. If, for example, only the husband has income that is transferred to the joint account, half of the credit is still due to the wife, unless the spouses have agreed otherwise. Both spouses are jointly liable for debit balances , even if one spouse has withdrawn a larger amount up to the credit limit without the consent of the other . In this case, the other spouse will be entitled to reimbursement if the corresponding amount has been spent. This is a sub-case of damage according to Section 826 of the German Civil Code (BGB) if, shortly before the separation, a spouse makes dispositions of the joint account beyond the share due to him without the knowledge of the other account holder and acts with intent to do so. This resolution is always present when the spouse knows that he is withdrawing more than he is entitled to. If he withdraws more than half of the balance, he must reimburse the other spouse for the difference. However, this reimbursement claim may no longer be enforceable if the affected spouse has already spent the money on moving costs, for example. Debt in a joint account is a joint debt. Each spouse is jointly liable internally (i.e. the spouses to each other) for joint debit balances from a joint account, regardless of what caused the debts and by whom; however, the bank may hold one of the account holders liable for the total amount. If the debts were incurred by the spouse who was not earning money, the bank will turn to the earning spouse for repayment ( Section 430 BGB). Even with and accounts adhere to the holder of the account as a joint debtor for the debts. The bank can therefore make individual claims against each holder.
In the case of individual accounts that are less suitable for married couples, the account holder grants his spouse power of attorney . If withdrawals should no longer be covered by the purpose of the granting of power of attorney , which is often conclusively agreed between the spouses , the disadvantaged account holder has a right to surrender from "presumptuous, supposed self-management" ( Section 687 (2) BGB) and a claim for damages from tortious acts against the Spouses. In that case, the disposing spouse will culpably and unjustifiably intervene in the sphere of the other spouse and is obliged to reimburse the damage ( Section 681 sentence 2 BGB and Section 667 BGB). Dispositions take place in selfish intent and culpable viewed by unauthorized contrasting spouse as his own business in (positive) knowledge of its strangeness, though it is objectively as a foreign business.
It is advisable for the account holder to explicitly revoke the power of attorney in favor of the spouse at the bank holding the account during the separation phase for individual accounts and for joint accounts ( Oder accounts ) to be transferred to individual accounts . It should be noted that the spouses can only open a joint account together. The conversion of an “or account” into an “and account” also requires an amicable change to the account contract by both spouses, so it is not possible unilaterally.
Supervised people
The court-appointed supervisor has the function of a legal representative ( § 1902 BGB). The supervised person can therefore not, even if he is legally competent, authorize the supervisor to carry out transactions for him that require the approval or approval of the supervising court . The judicial appointment takes precedence over a power of attorney under private law. Asset management has already been conclusively regulated by the supervisor , so that an appointment of account proxies for the supervisor is ineffective. This results from the control function of the court, which could be undermined by an authorization. Due to the legally stipulated competencies of the carer, the relatives of the carer have the option to monitor the carer's activities. The supervisor is accountable to the court anyway. The supervisor who is not related to the supervised person needs the approval of the supervising court ( § 1813 para. 1 no. 2 BGB in conjunction with § 1908i BGB), in particular for disposals of the supervised person's investment accounts , provided that they exceed EUR 3,000. Should the supervisor violate his or her extensive legal powers, the relatives of the supervised person have the option of filing a criminal complaint for fraud or breach of trust, or under civil law the way of deliberate immoral damage.
Inheritance cases
Inheritance rights of the heirs only arise with the death of the testator . Prior to this, they have no claims against the future testator or third parties, in particular not that the testator's assets are preserved. If future testators dispose of their assets in whole or in part for the benefit of other potential heirs, such donations can be taken up by law within the framework of the inheritance dispute after the death of the testator, in that the heirs offset the donations received in advance against their share of the inheritance under certain conditions have to leave. Only when the testator has died can heirs offset the previous dispositions of assets in favor of other heirs as part of the inheritance compensation ( § 2050 BGB). It is irrelevant whether these dispositions of assets were made by withdrawals by the testator or by using account powers in favor of other relatives. If the future testator gives away his assets to third persons or institutions who are not entitled to inheritance, the later heirs are required to provide evidence if the criminal offenses of fraud, embezzlement or forgery of documents have been committed.
If the testator is the sole account holder and has not given his future heirs or third parties any powers of attorney, the account cannot normally be looted. However, if relatives or third parties have been given account powers , there is a risk that these persons will make unauthorized dispositions without the knowledge of the testator. If the accounts of the testator were "cleared" before his death due to an account power of attorney without his approval, the offense can be breach of trust (§ 266 StGB) in offense with embezzlement (§ 246 StGB), if the account holder is deliberately harmed as a result.
As a rule, powers of attorney apply beyond the death of the testator (" transmortal bank powers of attorney"), so that the proxy may continue to have access even after the death of the account holder. Therefore, a revocation by the heir must be checked, which, however, may only be observed by the credit institutions upon presentation of a certificate of inheritance or a certified will. The OLG Bremen was of the opinion that an authorized bank representative who withdraws money from the deceased's bank account must prove that there was a legal reason for this withdrawal and that he forwarded the withdrawn money as instructed. Under criminal law, unlawful transfers / payments in favor of an authorized representative represent a case of embezzlement (Section 246 (1) StGB). Since bank agents have a position of trust, there is even a qualified case of Section 246 (2) StGB with increased threat of punishment.
In particular, deceased testators should be warned against giving other people account powers without thought. As long as these deceased nor full capacity possess, they are free to grant this account credentials. After the death of the testator, the authorized heirs must immediately revoke any existing account powers on the basis of the present certificate of inheritance or a certified will in favor of persons who are not entitled to inheritance, if there is a risk that such alleged heirs (legally they are inheritance owners according to §2018 BGB) over the estate is unauthorized. With the certificate of inheritance or a certified will, the heirs are also entitled to request information from the bank on all past account transactions.
Authorized representatives in good faith can protect themselves against malicious heirs according to the judgment of the Düsseldorf Higher Regional Court. You expect a high inheritance, have not looked after the testator adequately and are putting the authorized representative under pressure through suspicion or threats of legal action. The authorized representative may, under certain conditions, refuse to submit the accounts to these heirs.
Looting by criminals
The forms of account looting by criminals are diverse and are modified again and again. The perpetrators all have the following approaches in common:
- Account or card data are spied out ( skimming ), stolen (also by way of identity theft ) or forged;
- this data is used for unauthorized cash withdrawals or account debits ;
- the unauthorized account access takes place quickly, so that the account holder only learns about this relatively late.
In the case of debit and credit card fraud , card data is spied out by criminal gangs, cards are forged or stolen and used for unauthorized account access that the account holder does not immediately notice. Cardholders must be made aware of the situational risk involved in using the card or in the event of theft in order to avoid damage. The cardholder is also to blame if he incorrectly notes a PIN on the card or keeps it in the wallet together with the card. For the Federal Court of Justice , the first prima facie evidence suggests that the stolen person noted the PIN on the EC card or kept it together with it. According to the BGH, proof of the first appearance is applicable to typical events, i.e. in cases in which a certain fact is established which, according to general life experience, indicates a certain cause or a certain process as decisive for the occurrence of a certain success. If prima facie evidence speaks for a certain course of the cause, it can be refuted if facts are presented that suggest the serious possibility of another cause.
A relatively new method are test credits with small amounts that show the perpetrators whether a specific bank account and account number exist. If it does not exist, the amount will be automatically transferred back. However, if it exists and the account holder does not object to the credit immediately, there will be debits in the direct debit authorization procedure . The account holder concerned can object to this within 13 months of the debit because it is an unauthorized direct debit ( Section 676b (2) BGB).
The general rule in this context that the damaged account holders after the discovery of unauthorized dispositions immediately his debit or credit card in front of another decision with the bank be blocked must; he acts with gross negligence if he submits the report late or even omits.
Criminal offense
Loss of account as such is not an independent criminal offense, but is punished as embezzlement ( Section 246 StGB), fraud ( Section 263 StGB), breach of trust ( Section 266 StGB) and / or forgery ( Section 267 StGB) depending on the situation of the case . EC or credit card fraud, however, has been an independent criminal offense since January 2004. Specifically, there is credit card fraud in accordance with Section 152a of the Criminal Code ("forgery of payment cards, checks and bills of exchange"), EC card fraud in accordance with Section 152b of the Criminal Code ("forgery of payment cards with a guarantee function and forms for Euro checks") or the abuse of Section 266b of the StGB ("Abuse of check and credit cards"). If these prerequisites for a criminal offense are met, the injured party can file a criminal complaint that triggers a police investigation. Since some of the above-mentioned criminal offenses are official offenses , they can even be prosecuted ex officio .
Under civil law, it is deliberate damage that is immoral (Section 826 of the German Civil Code). The injured party has to prove the intent to cause damage, which is likely to be easier in the case of an account pillage by criminals than in the case of damage by relatives.
See also
Individual evidence
- ↑ a b OLG Düsseldorf, judgment of January 27, 1999, Az .: 11 U 67/98
- ↑ BGH NJW 1990, 705.
- ↑ BGH NJW-RR 1989, 834
- ↑ BGH NJW 1991, p. 441
- ↑ OLG Bremen, judgment of December 10, 2009, Az .: 5 U 31/09
- ↑ Düsseldorf Higher Regional Court, judgment of December 18, 2014 - 3 U 88/14 quoted from: Grundmann Häntzschel Rechtsanwälte, Leipzig
- ↑ OLG Frankfurt / Main, judgment of March 30, 2006, AZ: 16 U 70/05
- ↑ BGH NJW 2004, 3623
- ↑ New scam on account looting , Göttinger Tageblatt of March 17, 2010.
- ↑ Homepage card security with further information ( Memento from August 6, 2009 in the Internet Archive )
