By deception , a misconception ( error ) is caused by circumstances or sensory perceptions that do not correspond to the truth or reality , which lead to a wrong understanding of a state of affairs . It does not matter whether the deception is consciously brought about by someone else (someone is deceived) or not (someone is mistaken). In the first case, one also speaks of misleading (or, colloquially, a scam ).
Deceptions exist in a wide variety of everyday situations. The question is always what effects the deception has on the deceived person or third party. It is important whether the deception triggers a legally relevant deception and thus reaches the threshold of the law. Deceived people are protected by law in certain situations so that their misleading does not lead to damage to their health or property .
Deception in German law
In German law, deception, like threats, is an ineffective means used by the perpetrator to influence the will of the victim. An act of deception is any behavior that aims to arouse an incorrect idea in another, to reinforce it or to maintain it (see e.g. Grandchildren Trick ). The deception must cause a causal error in the victim .
In German law, the fact of deception leads to legal consequences for the person who deceives.
- A legal distinction is made between active deception ( e.g. fraud under Section 263 of the Criminal Code) and deception through omission ( Section 13 of the Criminal Code). Deceptive behavior is therefore an action or the lack of an action. Under criminal law, the deception is an untrue and thus false assertion about facts relevant to fraud. In the event of failure, someone has withheld a true allegation about facts relevant to fraud or has not corrected a recognized error, although he was obliged to clarify. An assertion of fact is false if its content does not correspond to the objective factual situation and the perpetrator asserts the existence of circumstances which in reality do not exist. The error must be excited or entertained in accordance with Section 263 (1) of the Criminal Code. “Arousing” is understood to mean “causing” an error, “maintaining” means “maintaining” an already existing error in the case of the deceived by “reinforcing”, “solidifying” or “lengthening”.
- Deception is also a prerequisite for counterfeit money ( Section 146 StGB), as it is intended to simulate the value of real money to the unsuspecting owner . After § 267 para. 1 of the Criminal Code makes due forgery offense to the producing a false certificate is, in a real tampering with or in the use of these documents "to deceive in legal relations". Then the deception is aimed at creating the impression that the document is genuine. "To deceive in legal dealings" is anyone who, through willful use of the document, fakes its authenticity to someone else and thus causes him to act in a legally relevant manner.
- In the case of misuse of ATM cards ( computer fraud ; ( Section 263a StGB)), the term “deception equivalence” is used. This occurs when the perpetrator uses money cards against a fictitious person - instead of the machine, an imaginary bank employee - without authorization.
- Although cunning is usually used by the perpetrator for an act of deception, it is not necessary for this, because the cunning perpetrator can also exploit the victim's existing errors. Cunning is behavior with which the perpetrator, in order to achieve his goal, diligently and skillfully conceals the pursued intention or the means used to achieve it, using a certain degree of “cleverness, cunning and skill”.
- If there is no explicit deception, implied, i.e. tacit acts of deception, are sufficient . This comes into question in the case of deception by omission, if the perpetrator is silent or behaves passively, which the victim understands as an explanatory value about a fact.
- A criminal offense is feigned according to ( § 145d Abs. 1 Nr. 1 StGB) if the perpetrator claims that an unlawful act according to ( § 11 Abs. 1 Nr. 5 StGB) was committed. In doing so, he misleads the administration of criminal justice, which is supposed to be protected from useless use of its apparatus and the associated weakening of the intensity of prosecution.
- Malicious deception is an independent, indefinite legal term. Fraudulently deception, according to prevailing opinion, if they intentionally done.
- Other: The homicide trait treachery can also be based on a deception. Misleading advertising is prohibited in Germany by the law against unfair competition . Pranks can also use fakes; they are rarely legally relevant.
Deceptions without legal consequences
Cunning and deceit
If a strong opponent is defeated by a weaker one through deception, this is generally rated positively as a cunning or strategy (war ruse ). One of the oldest stories contains the ( 1 Sam 17 EU ) of the duel between young David and a giant warrior of the enemy Philistines, Goliath . Trusting in God's help, David confronts the mighty enemy and can kill him with his slingshot :
“A pioneer named Goliath from Gath stepped out of the Philistine camp. He was six cubits and a span tall. He had a bronze helmet on his head and he wore a bronze scale armor that weighed five thousand shekels. He had bronze rails on his legs and a bronze sickle sword hung between his shoulders. The shaft of his spear was (as thick) as a weaver's tree and the iron spearhead weighed six hundred shekels. His shield bearer walked before him. "
Cunning heroes of Greek mythology are, for example, Odysseus and Hera , in fairy tales among others the hedgehog in The Hare and the Hedgehog . In sport, too, there are permitted deceptions known as feint . However, deceptions are rated negative, on deceit, malice or bad faith based.
Perceptual and cognitive delusion
A perception deception exists when the subjective perception deviates from the objective perception. Cognitive illusions are thought traps ; the term is based on that of optical illusion . Thinking traps can be created through manipulation .
A perception deception brought about by technical means is also called an illusion . Such deceptions are also used for entertainment purposes in magic .
If the deception is caused by a false statement, it is called a lie . Disinformation , on the other hand, is the mass distribution of false or misleading information.
With camouflage , an object is changed in such a way that it does not stand out or hardly stands out from the background or imitates the shape of a completely different object . Camouflage and deception are activities in the military and in the animal kingdom .
- Christian Gizewski: Deception as the success principle of public argument. A practical legacy of ancient rhetoric . Essay. TU Berlin, Berlin 1999 ( full text )
- James Edwin Mahon: The Definition of Lying and Deception. In: Edward N. Zalta (Ed.): Stanford Encyclopedia of Philosophy .
- ↑ a b Reinhard Bork, General Part of the BGB , 2006, p. 326.
- ↑ Laura Mayer Lux, The Conclusion of Fraud , 2013, p. 152.
- ↑ Laura Mayer Lux, The Conclusion of Fraud , 2013, p. 95.
- ↑ BGHSt 2, 50, 52
- ↑ BGHSt 33, 109
- ↑ Wilfried Küper, Criminal Law Special Part , 2012, p. 42.
- ↑ a b RGSt 17, 90, 93
- ↑ Herbert Tröndle / Thomas Fischer, StGB , 53rd edition 2006, § 145d Rn. 2 mw N.