Embezzlement (Germany)
The legal offense of embezzlement exists if someone intentionally keeps another person's movable property or does not surrender it, although he has been asked to do so and is not allowed to keep it. Mostly it concerns things that are not owned by the perpetrator.
Embezzlement is the most general offense in the German Criminal Code and is dealt with in Section 246 (1) of the Criminal Code . Embezzlement is acc. Section 12 (2) of the Criminal Code is an offense . As a property offense, embezzlement - in contrast to fraud ( Section 263 StGB) or extortion ( Section 253 StGB) - does not require any financial loss. Rather, completely worthless movable property can be withheld as long as it is foreign, i.e. H. are not solely owned by the perpetrator and are not ownerless .
qualification
The act is qualified by Section 246 (2) of the Criminal Code if the perpetrator was entrusted with the thing, that is, if the perpetrator was granted power of disposal over the thing by the owner in his or her interest or on his instructions. In return, the matter is always not "entrusted" if the transfer runs counter to the interests of the owner.
The attempted embezzlement is punishable ( § 246 para. 3 of the Criminal Code).
Constituent elements
In contrast to theft ( § 242 StGB) it is not necessary for the perpetrator to break custody . The embezzlement is thus a catch-all offense of property and property offenses . Thus, every perpetrator who commits a theft or robbery always concludes with embezzlement. However, this formally withdraws as subsidiary ( Section 246 (1) StGB at the end).
It is legally controversial whether it only claims no validity behind offenses with the same direction of attack. The case law rejects such a consideration, since the requirement of certainty from Article 103, Paragraph 2 of the Basic Law requires that such a restriction should expressly be in the law.
Appropriation means the presumption of an owner-like position ( se ut dominum gerere ). For this it is necessary that the perpetrator makes his will to appropriateness externally recognizable - manifests it. What is disputed is what quality this manifestation of the will to apologize must have. On the one hand, the opinion is expressed that any action is sufficient, even if it is outwardly harmless. The decisive factor for criminal liability would then be a subjective intention of appropriation.
example
The finder of a wallet on the street puts it into his pocket because he wants to take it to the lost property office . The subjective offense would not be fulfilled and criminal liability would not exist. He wants to keep the purse, however, both the objective and the subjective element met ( lost property ) and he is liable to prosecution as embezzlement perpetrators.
Legal Discourses
Another legal point of view would be that the behavior must be clearly recognizable as an act of assault, e.g. B. by alienation or denial of ownership . This view may also come at a different time when the offense was committed.
Others also aim for the victim to be finally expropriated by the perpetrator. This view is unlikely to be useful, since a really final expropriation is likely only to be assumed in the event of the death of the victim of embezzlement and therefore radically restricts the area of criminal liability.
Finally, the focus is on a (concrete) endangerment of property, which should also form the (admittedly unspoken) corrective of the jurisprudence for its broad theory of manifestation.
Competition problems
It is disputed whether there can be a "appropriation after appropriation", ie whether z. B. the thief who later resells the stolen thing makes it again punishable for embezzlement. As a result, there is agreement that a punishment on the basis of the second appropriation is ruled out. While the jurisprudence assumes that a second appropriation does not meet the criteria of Section 246 (1) StGB ( appropriation is only the creation of an owner-like position), the literature predominantly assumes that a second appropriation also fulfills the criteria, but at competitive level withdraws as a co-punished night offense behind the previously realized theft or stolen goods .
See also
literature
- Wolfgang Bittner : The concept of custody and its meaning for the systematics of property offenses , Südwestdeutscher Verlag für Hochschulschriften, Saarbrücken 2008, ISBN 978-3-8381-0051-7
- Gunnar Duttge / Sotelsek, Jura 2002, pp. 526-534
- Gunnar Duttge / Sotelsek, NJW 2002, pp. 3756-3758
