Damage-equivalent financial risk
The damage-equivalent endangerment of property (also: endangerment of property as damage ) is a subject that is strongly influenced by case law, which constitutes an entry offense on the thematic basis of fraud in accordance with § 263 StGB and infidelity according to § 266 StGB represents.
General
In the context of the damage-equivalent threat to property, the definition of damage in Section 263 of the Criminal Code and the term of disadvantage in Section 266 of the Criminal Code play a central role. In this context, they have the same meaning. Further, the difference between the two mentioned offenses under the subjective constituent feature as well as the experimental criminality noted. Both are given in the case of § 263 StGB, but not in that of § 266 StGB; which justifies a strong influence by the jurisprudence, whose judgments on this subject are often at the limits of Art. 103 Paragraph 2 GG .
Damage-equivalent financial risk
In the context of § 263 StGB
The term “ fraud” damage, which is commonly understood as final damage, is qualitatively equivalent to what is known as concrete endangered damage - which is to be distinguished from abstract endangered damage and does not have the following feature - in the context of damage -equivalent financial risk . It follows from this that, in principle, the endangerment of the property is already made a criminal offense and a later outflow of damage or a specification of the damage would only lead to a deepening of the damage.
In this context, the harm same assets risk a entering into offense and no fulfillment offense . That is, the timing of the offense completion is advanced to the time the contract when either at the time the contract was already a breach of contract action should be masked (See. Example 1) or but there was an inferior counterclaim (see example 2).
In the context of § 266 StGB
When it comes to infidelity , the focus here is primarily on the term disadvantage. This is generally understood to mean that assets after an unspecified act are lower than before it. The so-called specific threat to property is now equated with this concept of disadvantage. Such is the case if, from an economic point of view, there has already been a decrease in assets (see example).
Concept of concreteness
The specificity plays a major role in the context of the damage-equivalent risk to property. This is justified in particular by the fact that a forward shift of the infidelity to the experimental criminality is to be prevented and also not to allow too broad an interpretation of the criminal liability. The aim is still to punish the damage to the property and not the endangerment of the property (endangerment offense contra legem).
The district court of Kiel specifies the concept of concreteness as follows:
- It must be expected that the final damage will occur soon.
- The avoidance power must no longer lie with the injured party, but only at the discretion of the perpetrator. The injured party himself must therefore no longer be able to protect his property against the occurrence of damage.
- There must be well-founded facts that make the occurrence of the damage appear sufficiently probable.
In the literature, however, these delimitation criteria are sometimes criticized as inadequate.
Examples
Examples in the context of § 263 StGB - fraud
- example 1
A policyholder and an insurer face each other on the market. The policyholder is willing to take out life insurance with the insurer. The former does this with the ulterior motive of trying to steal the sum insured at a later point in time by submitting a forged death certificate.
Even in this case, there is a damage-equal financial risk. Paying out the sum insured to the policyholder would only worsen the damage. An important feature is that the policyholder had the will to want to steal the insured amount even before the conclusion of the contract in order to have made himself a criminal offense, namely in the context of a committing offense .
- Example 2
By presenting forged documents and IDs, a person applies for bank accounts to be opened with various credit institutions. Visa cards with overdrafts or credit cards are also applied for at the same time.
Here, too, there is a damage-equal financial risk. If the credit cards were only managed on a credit basis, there would be no damage-equivalent financial risk.
Examples in the context of § 266 StGB - infidelity
A instructs B to safeguard his property interests. B invests the capital entrusted to him in shares of a company that faces not inconsiderable payment obligations within the next few days. The share price will certainly fall as a result.
Based on this example, which also represents a damage-equivalent threat to property, the distinguishing features of the concept of concreteness can be shown very well. The occurrence of damage is to be expected soon (within the next few days), the avoidance power is no longer with the A (because he can no longer avert the damage himself from his assets), and there are well-founded facts that make damage occurrence probable appear (the payment obligations of the company in which the B had invested the capital).
Individual evidence
- ↑ Cyberfahnder.de
- ↑ a b c d e f BVerfG, decision of the 2nd Chamber of the Second Senate of March 10, 2009 - 2 BvR 1980/07
- ↑ a b c d Hans Kudlich, Mustafa Temmuz Oglakcioglu (2011): Commercial criminal law, p.88 "
- ↑ BGH 2 StR 447/10 - decision of October 14, 2010 (LG Aachen) "
- ↑ Hans Kudlich, Mustafa Temmuz Oglakcioglu (2011): Wirtschaftsstrafrecht, p. 88