Betrayal
According to German criminal law , betrayal of parties , including prevarication , is a criminal offense that a lawyer or other legal adviser can commit to the detriment of his client. The offense of betrayal is regulated in Section 356 of the Criminal Code.
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The wording of § 356 StGB is:
(1) A lawyer or other legal adviser who, in the matters entrusted to him in this capacity in the same legal case, serves both parties in breach of duty through advice or assistance, is punished with imprisonment from three months to five years.
(2) If the same person acts with the consent of the other party to the detriment of his party, imprisonment of one year to five years applies.
Perpetrator
A qualified perpetrator of the offense is only a lawyer or other legal counsel , that is, an organ of the administration of justice , who in this capacity is entrusted with the performance of foreign business. This also includes tax consultants , tax agents , auditors and sworn auditors , as this group of people in criminal tax proceedings, according to § 392 Abs. 1 AO, can be elected as defense counsel.
Section 356 StGB describes a special offense in this respect. A protected legal interest is not only the protection of the client, but also the trust of the population in the law firm as part of the state administration of justice.
Offense
In the case of paragraph 1, the act of offense is acting on behalf of two parties, although the lawyer has a conflict of interests (cf. § 45 BRAO ). Not every action in the case of a conflict of interest is also a party betrayal.
The matter must have been entrusted to the perpetrator in his capacity as a lawyer. If the lawyer does not appear professionally or on his own behalf in a matter, the application of § 356 StGB is ruled out. It is sufficient for a client to seek advice from a law firm and this is given as a favor.
It is disputed whether there is a conflict of interests in terms of the facts if a criminal defense lawyer represents several separately prosecuted accused who could potentially incriminate one another but who subjectively do not see a conflict of interests.
qualification
Section 356 (2) StGB constitutes a qualification : Deliberate action to the detriment of one's own party on the basis of a common will with the other party to harm the client is a crime and is threatened with a minimum imprisonment of one year and a maximum penalty of five years.
Individual evidence
- ↑ Ferdinand Gillmeister: Title land volumes 3 and 9; Section 356 large comments in practice. Walter de Gruyter 2006, ISBN 3-110-2782-27 , p. 17. 23.
- ↑ Offermann-Burckard: "Conflict of interests - what every lawyer should know" in Anwaltsblatt 6/2008.
- ↑ BGH Volume 12, page 98
- ^ Decision of the Reichsgericht in Criminal Law Matters Volume 62, page 291
