Infidelity (Germany)

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In German criminal law, breach of trust is a criminal offense, which is standardized in Section 266 of the Criminal Code in Section 22 of the Special Part of the Criminal Code (StGB) .

The norm aims to protect property and is therefore one of the property offenses . A distinction is made between two variants, the abuse and the fraudulent offense. In the former, the perpetrator damages the assets of a third party by improperly exercising his power of disposal or representation by acting within the scope of his legal ability, but exceeding the legal may in the internal relationship. In the case of the latter, the property damage occurs through the breach of a loyalty relationship. This is mostly based on asset management obligations, for example those of an asset manager .

The offense of infidelity has been included in the Criminal Code since its entry into force and has been the subject of reform discussions ever since. The current state of affairs is based on a new version of June 1, 1933. Its interpretation is controversial in jurisprudence, as some accuse the norm of being too vague and imprecise.

A prison sentence of up to five years or a fine can be imposed for infidelity . Forensic policy, the infidelity, despite the comparatively small number of cases recorded by the police (2017: 6,041 cases) in addition to the fraud ( § 263 SCC) a central constituent of the commercial criminal is the. Clearance rate is over 95% to an above-average when compared to other offenses level .

Normalization

Since its last change on April 1, 1998, the offense of infidelity has been as follows:

(1) Anyone who abuses the authority granted to him by law, official mandate or legal transaction to dispose of third-party assets or to oblige another person or who violates and violates the obligation incumbent on him by law, official mandate, legal transaction or a loyalty relationship to safeguard third-party financial interests thereby causing disadvantage to the person whose financial interests he has to look after, is punished with imprisonment of up to five years or with a fine.

(2) Section 243 (2) and Sections 247, 248a and 263 (3) apply accordingly.

Because of the standard range of penalties of up to five years' imprisonment or a fine, breach of trust according to Section 12 (2) of the Criminal Code is an offense . With the offense, the legislature aimed to protect property from damage caused by the unfaithful exploitation of a position of trust. Individual legal scholars see the standard also protect trust in the honesty of business dealings.

History of origin

Forerunner of Section 266 of the Criminal Code

The Constitutio Criminalis Carolina of 1532 contained two provisions that penalized unfaithful behavior: Article 170 standardized the unfaithful handling of other people's things. Article 115, while tailored to betrayal of the party , was also applied to other persons who harmed a person with whom they had a special duty, such as curators .

The Reich Police Order of 1577 contained in Section 3, Title 32, a penal norm that prohibited the abuse of a guardian position . In the Prussian General Land Law , the legislature introduced numerous offenses in Sections 1331-1376 that threatened unfaithful conduct with the threat of punishment. The focus of these norms was the violation of a special duty of loyalty. The Bavarian Criminal Code of 1813 contained an offense of infidelity in Article 398. In addition to property-related damage, this also recorded bigamy and betrayal of parties.

In the Prussian Criminal Code of 1851, the legislature included an offense in Section 246, which ordered the criminal liability of certain groups of people who have special obligations to others, such as guardians, sequesters and brokers . The criminalized act was the exploitation of the trust position in order to harm the owner of the business. Which entered into force on 31 May 1870 Criminal Code of the North German Confederation adopted this Prussian standards and supplemented them by another trust relationships, such as the bankruptcy administrator .

Section 266 of the Criminal Code as amended on January 1, 1872

As part of the drafting of a new penal code for the German Empire , the infidelity offense under Section 246 was incorporated into the new law. The wording of the law at the time was:

(1) The following are punished for infidelity with imprisonment, next to which a loss of civil rights can be recognized:

1. Guardians, curators, curators, sequesters, mass administrators, executors of wills and administrators of foundations if they intentionally act to the detriment of the persons or property entrusted to their supervision;
2. Authorized agents who deliberately dispose of claims or other assets of the client to disadvantage the client;
3. Surveyors, auctioneers, brokers, property confirmers, conductors, weighers, knives, brackers, showers, stevedores and other persons obliged by the authorities to conduct their business if they deliberately disadvantage those whose business they are responsible for in the business assigned to them.

(2) If the infidelity is committed in order to gain a financial advantage for oneself or for another person, a fine of up to three thousand marks can be recognized in addition to the prison sentence.

This norm was controversial in many respects in jurisprudence: The individual cases in which the possible perpetrators were listed and the lack of clarity regarding the injustice that characterized infidelity were criticized: Section 266 (1) number 1 and number 3 of the Criminal Code standardized actions in which the breach of a Loyalty was the focus. The related breach of loyalty theory therefore assumed that the breach of trust prohibited property damage that ran counter to a special duty of loyalty on the part of the perpetrator. This teaching was held against the fact that it could not explain § 266 paragraph 1 number 2 of the Criminal Code: This fact concerns the violation of a power of attorney, for which no special relationship of trust is required.

In connection with this variant of the facts, the abuse theory emerged, which saw the punishable injustice of infidelity in the damage to the property of others through the abuse of a representative power. The criticism of this doctrine was that it led to a shortening of the scope of the offense that was not intended by the legislature: because of the reliance on a power of representation, this interpretation only encompassed legal transactions, thereby disregarding harmful real acts such as processing . Several reform proposals were therefore drawn up, but they did not result in a change in the law.

Section 266 of the Criminal Code since the version of June 1, 1933

Shortly after the Reichstag election on March 5, 1933 and the enactment of the Enabling Act on March 24, the National Socialists began to amend criminal law. The subject of the first amendment by the law amending criminal law provisions of May 26, 1933, was, among other penal norms, the offense of breach of trust, which was redrafted at the instigation of the Reich Ministry of Justice on the basis of earlier reform proposals. Although this was intended to eliminate the previous points of contention and to ensure the most comprehensive possible protection of assets, on the other hand the scope of the standard should be significantly expanded. As a result, on June 1, 1933, the infidelity offense valid until the end of the Weimar Republic was replaced by a completely new version with the following wording:

(1) Anyone who deliberately misuses the authority granted to him by law, official mandate or legal transaction to dispose of third-party assets or to oblige another person or who violates the obligation incumbent on him by law, official mandate, legal transaction or a loyalty relationship to safeguard third-party financial interests and thereby harming the person whose property interests he has to look after, is punished for infidelity with imprisonment and a fine. In addition, loss of civil rights can be recognized.

(2) In particularly serious cases, the prison sentence is replaced by a prison sentence of up to ten years. A particularly serious case exists if the act harmed the well-being of the people or resulted in other particularly great damage or if the perpetrator acted particularly maliciously.

With this version, the legislature replaced the previous individual case-like regulation with an abstractly formulated offense and conceived two acts, one of which was fraudulent and the other a breach of loyalty. He also added two rule examples to the offense , which recommended a higher level of punishment if the perpetrator caused particularly great damage through the infidelity or if the well-being of the people was harmed.

On October 1, 1953, the legislature removed these rule examples and instead introduced a criminal complaint requirement if the offense was directed against a relative, a guardian or an educator. On September 1, 1969, the threats of the penitentiary and the deprivation of civil rights were removed. When the Introductory Act to the Criminal Code came into force, the cumulative threat of imprisonment and fines was replaced by the option of alternatively ordering both sanctions. The explicit arrangement of the criminal complaint requirement has been replaced by a reference to the criminal complaint requirements of theft . As part of the sixth criminal law reform act of 1998, the standard was supplemented by a reference to the standard examples of fraud .

Due to the broad formulation, it was and is controversial to what extent the breach of trust is compatible with the requirement of certainty derived from Art. 103, Paragraph 2 of the Basic Law and is thus constitutional. The dependence of the constituent elements on the comparatively indeterminate norms of civil law, in particular company law, was often criticized . The Federal Constitutional Court therefore repeatedly dealt with the constitutional conformity of infidelity and ruled that the offense, despite its extremely broad characteristics, is compatible with the constitution. However, it urges the case law, in particular, to interpret the facts in a more precise and concrete way.

Objective fact

The object of infidelity is someone else's property. The concept of wealth corresponds to that of fraud , which is why the strangeness of wealth is determined according to civil and public law standards. Therefore, assets are alien if they are not the sole property of the perpetrator.

The offense of breach of trust contains two alternative courses of action: the abuse of the authority to dispose of someone else's property (offense of abuse) and breach of trust (offense of faithfulness), of which the former is more specific . Both variants sanction behaviors that are characterized by the misuse of a granted agency.

Abuse

The offense of abuse denotes a burden of third-party assets that goes against the interests of its owner. This burden occurs through the use of legal authority.

Obligation or power of disposal

The offense presupposes that the perpetrator may dispose of the assets of another person or, as the representative of another person , is able to oblige him in business dealings . These powers can result from a legal transaction, a law or an official mandate. The guardian, the executor and the insolvency administrator , for example, have legal powers . The mayor, for example, has the authority to commit and dispose of by order of the authorities. The authorized signatory and the managing director of a company receive extensive power of representation through a legal transaction. If the granting of power of representation is ineffective, criminal liability for breach of trust does not come into consideration.

Since the standard prohibits the improper use of legal authority, the legal act carried out by the perpetrator must be effective directly on the basis of this authorization. This is lacking if the effectiveness of his action only results from additional legal norms. This is the case, for example, with the unauthorized transfer of ownership of someone else's property : In this case, the perpetrator does not use any authorization granted to him, as no one authorized him to transfer ownership of the thing. The effectiveness of the transfer of ownership results solely from a property law norm that aims to protect the purchaser in good faith. In this context, the norms § 170 , § 171 and § 172 BGB occupy a special position , which fake a power of representation for certain case constellations in order to protect the contractual partner. What these constellations have in common is that legal transactions may legitimately mistake the perpetrator for a deputy based on legal appearances. This is the case, for example, if the person represented issues a power of attorney to the representative and does not request it back when the power of representation expires. Since the power of attorney is irrelevant for the expiry of the power of representation, the representative acts without power of representation, so that he cannot abuse such power. Nevertheless, the prevailing view regards the exploitation of these special traffic protection facts as a factual abuse: Sections 170–172 BGB, unlike other legal fictions, are linked to an earlier legal granting of a power of representation, so that the perpetrator ultimately damages someone else's property by giving him a special position of trust was granted by legal transaction.

Act of abuse

Concept of abuse

The act of abuse of the alternative lies in the abuse of this obligation or power of disposal. Such abuse is generally defined as exceeding legal entitlement within the framework of legal ability. This is done by the perpetrator effectively representing the asset owner in legal transactions, but disregarding instructions or restrictions issued by them. Since effective representation is required for abuse, it excludes criminal liability for breach of trust if the representative exceeds his power of representation through his actions, i.e. exceeds not only his legal authority but also his legal ability.

A typical constellation of the abuse of a power of representation is the act of an authorized officer contrary to the instructions. According to § 50 Paragraph 1 of the Commercial Code , restrictions on the authorized representative's power of representation by the person represented have no effect against third parties. The disregard of such an instruction by the authorized signatory does not affect the effectiveness of the representative, so that the representative is effectively obliged by the business of his authorized signatory. The same applies to managing directors of a company, to whom specifications can be made in the articles of association or articles of association, but who still effectively represent their company even if an internal requirement is disregarded.

Abuse by Failure

Abuse can also result from the offender's failure to act if this acts like a legal declaration. This is the case, for example, if you do not respond to a commercial letter of confirmation , as the silence results in the conclusion of a contract. Whether a mere unfaithful omission, such as the statute of limitations on a claim, can be regarded as abuse is a matter of dispute in jurisprudence.

It is also disputed whether the possibility of mitigating punishment under Section 13 (2) StGB applies to the abuse . This issue is rooted in the nature of the offense of infidelity: Section 13 (1) of the Criminal Code provides for offenses that are linked to the occurrence of a legally disapproved success that the perpetrator can be punished for failure to prevent this success from occurring. If Section 13 (1) of the Criminal Code results in a criminal offense in connection with a criminal offense, it is a spurious omission offense - in contrast to facts that disapprove of the omission itself, so that recourse to Section 13 (1) of the Criminal Code is not required. This is the case , for example, with failure to provide assistance . In Section 266 of the Criminal Code, the element of abuse already includes the commission by failure to do so, so that recourse to Section 13 of the Criminal Code is not necessary. In order to allow the perpetrator of infidelity to have the option of mitigating punishment granted by Section 13 (2) of the Criminal Code, case law applies this norm analogously. The objection to this is that Section 266 of the Criminal Code is also conclusive with regard to its scope of punishment, so that there is no room for an analogy.

Consent excluding the factual

An act of the perpetrator that fulfills the definition of abuse does not constitute an abuse of the offense if the asset owner has agreed to this act. Such an exclusionary agreement presupposes that it is free from a lack of will . Such a deficiency exists, for example, if the consent was obtained through deception or was obtained fraudulently.

In principle, an error on the part of the grantor based on business inexperience does not represent a lack of will. The case law makes an exception to this if the perpetrator deliberately exploits the ignorance of the other. Approval can therefore be ineffective if the asset owner is not informed about the above-average risk of a transaction before it is granted in order to induce him to give his consent. The case law makes a further exception for declarations of consent that violate a legal prohibition. This can happen, for example, if a supervisory body of a legal person , such as a stock corporation (AG), makes a declaration that is contrary to the statutes . The same applies to the approval of a student parliament to an act of the General Student Committee that goes beyond its competencies .

It is controversial to what extent the consent of the shareholders of a limited liability company (GmbH) can exclude the facts. Although the entirety of the shareholders constitutes the highest decision-making body of a GmbH, the management of this corporation is subject to some legal restrictions that are intended to ensure the preservation of the company's assets. These requirements exist because, unlike, for example, in a general partnership, no GmbH partner is personally liable. The only liability subject to the creditors of a GmbH is the company. If it goes bankrupt , the claims of the creditors in fact lose a large part of their value. Therefore, the creditors have a great interest in the shareholders managing the capital of their GmbH in an honest and responsible manner. While the Reichsgericht did not attach any importance to the consent of the shareholders to be embezzled by the managing directors, the Federal Supreme Court recognizes such consent in principle. Only actions that contravene legal regulations and endanger the existence of society cannot be based on consent. These typically include interventions in the company's share capital to be retained for the purpose of securing creditors in accordance with Section 30 GmbHG or measures that cause the company to become overindebted . The same applies to stock corporations. The objection to this view is that the act of breach of trust does not serve to protect creditors. The bankruptcy offenses were created for this purpose .

Risk business

There is a particular danger of being accused of abuse in activities that often involve the conclusion of risky transactions. This is regularly the case in business life, for example when managing a corporation. In this context, common risky transactions include, for example, the granting of loans, sponsorship money or the decision on the remuneration of the board of directors. The threat of punishment is in conflict with the usual and the necessity of more daring business decisions.

A criminal liability for breach of trust is ruled out as long as the risky business activity is supported by the express consent of the asset owner. If there is no specific consent, this can result from the scope of action that the asset owner grants the manager to perform his duties. In such cases, case law assumed that action is still within the scope of action as long as it is a carefully considered decision based on a sense of responsibility. This understanding harbors the risk that the offense of breach of trust is also of minor importance in the case of numerous wrong business decisions, which means that people in decision-making positions are exposed to a considerable risk of criminal liability. The jurisprudence therefore switched to considering breach of trust only in the event of a serious breach of duty by the perpetrator.

Asset management obligation

starting point

The interpretation of the abuse offense is controversial because the legal text is ambiguous. The following section of the text causes problems of understanding: "... and thereby harms the person whose property interests he has to look after" . Opinions differ on the question of whether, within the meaning of the law, the duty to look after the interests of the property relates solely to the breach of loyalty or also to the offense of abuse. The prevailing view affirms the latter variant with regard to the structure of the offense and the requirement of a restrictive interpretation of the offense of infidelity. Therefore, the offense presupposes that the perpetrator has an obligation to look after the assets.

requirements

An asset management obligation is characterized by the fact that it focuses on the perception of external asset interests. Such an obligation, like an obligation or power of disposal, can result from a legal transaction or a law. It can also arise from other relationships of trust. Since the wording of the law is not very meaningful, jurisprudence uses additional criteria in order to determine criminally relevant asset management obligations.

For example, it assumes that the duty must primarily focus on the protection of the property entrusted to it. Furthermore, it must be characterized by independence and give the person responsible for asset management their own decision-making freedom with regard to the management of the assets. An asset management obligation is therefore to be denied in particular for people who have access to third-party assets, but can only exercise them under the supervision or control of third parties. This is typically the case with messengers, secretaries and courier drivers.

In addition, this duty of the perpetrator must be of central importance from the perspective of the asset owner. The case law names the duration and scope of the activity of the obligated party as typical indications for this. Finally, the duty of care must take a key position within the offender's program of duties. This avoids that a minor breach of contract or behavior contrary to the contract in exchange transactions such as purchase and work contracts can give rise to criminal liability for breach of trust. In these transactions, the perception of a third party interest is lacking, since both contractual partners act on the basis of their own interest in the services to which they are entitled. Even with such contracts from § 241 (2) BGB, both contracting parties are obliged to take the other's legal interests into account, but this obligation is a mere secondary contractual obligation , the violation of which is not covered by the punitive purpose of breach of trust.

Case studies

For example, the case law saw the commercial agent vis-à-vis his client, the commission agent vis-à-vis the principal and the lawyer vis-à-vis his client as responsible for asset management . In the case of a civil servant, on the other hand, the general duty of loyalty to the state is not sufficient; rather, he must be assigned a special duty in property matters. For the administrator of a cash register, the structure of the administrative obligation is decisive. The case law assumes a sufficient duty of care if the cashier keeps books, gives receipts and gives change.

The Federal Court of Justice also considers the landlord who manages the tenant's security deposit to be responsible for asset management, contrary to the stipulations of Section 551 (3) BGB. This standard obliges the landlord to leave the tenant's deposit at a bank. If he uses the money in a different way, a criminal liability for breach of trust comes into consideration, since the landlord has a fiduciary duty towards the tenant. Some legal scholars argue against this that the landlord's administration of the deposit does not represent his main obligation towards the tenant. The landlord also lacks sufficient leeway in making decisions about the use of the deposit amount, since Section 551 (3) BGB obliges him to provide the money to create a bank.

In science it is disputed whether an obligation to look after assets can arise from agreements that violate the law or morality . This is the case, for example, when someone entrusts money to someone else so that he can transfer it abroad for the purpose of tax evasion. According to one opinion, the legally disapproved nature of such an agreement does not result in an obligation to look after the property, since its criminal protection would be contrary to the rest of the legal system. The opposite view, which is also represented by the case law, on the other hand, basically affirms the possibility of an obligation to look after the assets in the case of legally disapproved agreements, since the assets do not lose their protection through the disapproved actions of the parties involved. According to the last-mentioned view, a criminal liability for breach of trust would therefore come into consideration if the person to whom the property was entrusted uses it for his own purposes. It is undisputed, however, that the offense of Section 266 of the Criminal Code is not fulfilled by refraining from the illegal or immoral business, even if an obligation to look after assets would require it. This would be contrary to the legal system.

Breach of loyalty

If the offense of abuse is not relevant, the offense of infidelity can also be carried out by breach of loyalty. This fact assumes the violation of an asset management obligation.

Violation of an asset management obligation

A breach of a contractual or legal obligation can initially be considered as a breach of duty. This breach of duty can occur in the context of a legal transaction or, unlike in the case of abuse, in the context of an actual effect on the property. Even falling below the due diligence that is typical of traffic can constitute a breach of duty relevant to the facts. According to case law, a breach of duty can also be a violation of foreign company law if the perpetrator participates in a foreign company form. The objection to this is that the application of obligations from other legal systems violates the requirement of certainty and disregards the parliamentary reservation.

It is necessary that the act of infringement takes place within the framework of the loyalty relationship characterized by the asset management obligation. The perpetrator must therefore violate an obligation that is part of his property care.

As with abuse, breach of loyalty can also be committed through failure to act. This is the case, for example, if the perpetrator transfers company assets entrusted to him to a secret account without informing his superiors in order to bribe business partners of the company. Furthermore, the criminal liability can also be omitted in the case of breach of loyalty by giving consent that excludes the offense.

Limitation to serious breaches of duty

The breach of loyalty alternative has an extremely broad area of ​​application due to its few specific requirements, so that it is in tension with the criminal law requirement of certainty. For this reason, a restrictive interpretation of the constituent elements is necessary.

Therefore, the first criminal senate went over to recognizing only serious breaches of duty as a matter of fact. As examples of such a serious breach of duty, the Federal Court of Justice cited in a decision on improper lending the disregard of information obligations, providing false information to shareholders and supervisory bodies, exceeding the maximum permitted loan amount and the selfish actions of the perpetrator. With regard to sponsorship decisions, he cited as examples in which a serious breach of duty is likely, the lack of proximity of the funding to the corporate object, the inappropriateness with regard to the earnings and financial position of the sponsor, a lack of internal transparency and the pursuit of inappropriate motives by the Responsible person.

In the Mannesmann Trial , which took place a few years after these decisions , the responsible third criminal division distanced itself from the restriction on serious breaches of duty developed by the first criminal division and considered this to be significant in the case of entrepreneurial risk and donation decisions , but not in the present process. In this contract, bonus payments to individual managers of Mannesmann AG not provided for in the contract were the subject of the dispute. If such payments are made without a legal obligation and are of no benefit to the company, this constitutes a sufficient breach of duty as the improper use of company assets. Legal scholars objected to the waiver of the criterion of serious breach of duty that the restrictive interpretation of the facts is necessary in all factual situations was to interpret the breach of fidelity in conformity with the constitution.

Case studies

A breach of duty can be the appropriation of property that was entrusted to the perpetrator. This also includes the formation of black coffers , which are used to divert and use funds without authorization. Excessive payments from the assets of a company, such as disproportionately high wages or commissions, can also be considered an offense. The same applies to the conclusion of contracts at particularly disadvantageous conditions for the company. The same is true with the payment of fines from the association assets, against individual members of a public association is imposed. Manipulative bookkeeping also constitutes a breach of duty of care.

Successful act

Financial disadvantage

A criminal liability for breach of trust also presupposes that the asset owner suffers a financial disadvantage as a result of the abuse or breach of trust. This characteristic corresponds to the financial loss in fraud , which is why there are numerous parallels between the two constituent elements. A pecuniary disadvantage in the sense of a breach of trust is a loss of property that is not compensated for by something in return. Even a financial gain that was not generated through the breach of duty by the person responsible for asset management can represent loss as lost profit . As with the offense of fraud, the meaning of the term assets is disputed. According to the economic asset concept favored by the jurisprudence in principle, this includes all asset positions. The opposite view, which is referred to as the legal-economic concept of property, is limited to assets that are not disapproved by the legal system, since further protection would be contradictory.

Hazardous damage

As in the case of fraud, according to the prevailing opinion, a damaging financial threat can also suffice for the assumption of a financial disadvantage in the case of embezzlement. This figure is used if no financial disadvantage has occurred: If the risk of such a thing is so great that it burdens the owner of the property in a manner comparable to the actual occurrence of the disadvantage, this is equivalent to a financial disadvantage. This can be the case, for example, if the perpetrator manages the assets to be looked after as a black fund or acquires a contestable claim through a payment from the assets . Entering into a risky business can also constitute hazardous losses if the risk of loss far exceeds the probability of profit.

Science is discussing further criteria for the assumption of a damage-equivalent threat to property in order to specify this element of the offense. In some cases, the focus is on the extent to which the asset owner can control the endangerment of his assets. Others are guided by civil law and affirm that there is a loss of property if the risk of loss is so great that civil law grants the property owner a claim for compensation. Still others consider it necessary that the threat to assets can lead directly to a loss of assets without, for example, the need for action by third parties.

A critical aspect of the transfer of the doctrine of endangering harm developed for fraud to infidelity is seen as the fact that infidelity has significantly less defined criteria than fraud. Given the requirement of certainty, the fact that the threat to assets should suffice as a financial disadvantage appears to be critical. In addition, unlike fraud, attempting infidelity is not a criminal offense. In the case of breach of trust, the existence of damage does not decide whether an act has been completed or is merely an attempted act, but whether it is criminal or impunity. This makes it necessary to be able to precisely determine the existence of damage.

The Federal Constitutional Court, which dealt with the endangered harm in a constitutional complaint , emphasized that the recognition of the endangered harm in the case of infidelity was problematic, since the offense of this criminal norm was already extremely vague. Nevertheless, this legal figure is basically also to be agreed with the constitution in the case of infidelity, since in a market economy future expectations can also have a value-building effect. It is necessary, however, that a specifically quantifiable amount can be determined as a financial disadvantage that results from the threat.

Compensation for the loss

The financial disadvantage can be omitted if the perpetrator wants to compensate for the loss and is financially able to do so. According to case law, it is sufficient for entrepreneurial decisions that the loss of assets as part of a uniform economic project is based on a plan that leads to an increase in assets.

The starting point for assessing an inflow of assets as compensation is its objective value. However, if this inflow is associated with a considerable burden for the asset owner or if it is worthless for him, it is not suitable to compensate for the financial disadvantage. This is known as an individual damage impact, a principle that also applies to fraud.

Subjective fact

According to Section 15 of the Criminal Code, criminal liability for breach of trust requires at least conditional intent . The perpetrator must therefore at least recognize that he can realize a financial disadvantage through his abusive or contrary to duty behavior and accept this approvingly as a result of his actions.

The fact that conditional intent is sufficient as the weakest form of intent leads to a wide scope of application of the standard , particularly in the area of ​​white-collar crime law . In the case of high-risk transactions, which typically have an inherent risk of loss, particular problems arise because the perpetrator often acts with knowledge of the risk situation. In order to limit the criminal liability for breach of trust to criminal cases, the jurisprudence places high demands on the proof of intent. In particular, it demands that the perpetrator realizes that he is not acting in the interests of the property owner. If he mistakenly considers his actions to be in accordance with his duties, this can constitute a deliberate error of fact ( § 16 StGB).

Special standards also apply to the assumption of intent regarding the cause of disadvantage. According to jurisprudence, the greater the threat to someone else's property, the closer it is to accept a disadvantage. If he even endangers the existence of the asset owner, the intent is almost indicated.

Participation

The duty to look after assets is a particularly personal characteristic within the meaning of Section 28 (1) StGB. Infidelity is therefore a special offense in both types of commission . If a person is involved in the act who has no obligation to look after the property owner who has suffered damage, he / she cannot make himself / herself a criminal offender , but only as a participant , i.e. as an instigator or assistant .

In the case of aiding and abetting, the applicability of Section 28 Paragraph 1 StGB means that the penalty is to be mitigated twice under Section 49 Paragraph 1 StGB: both Section 27 Paragraph 2 StGB and Section 28 Paragraph 1 StGB provide for such a mitigation. However, the case law is limited to a simple mitigation of the sentence if the perpetrator is to be regarded as an assistant solely because he is not obliged to look after the assets, since his contribution has the weight of a criminal act.

If the perpetrator acts as a representative of a person subject to asset management, he is not necessarily subject to asset management himself. A criminal liability for breach of trust is still possible despite the lack of a duty to look after assets under application of Section 14 (1) StGB. This standard extends the criminal responsibility of the bearer of a special personal characteristic to persons who act as their representatives.

attempt

Due to the character of the offense of infidelity, the criminal liability of the attempt according to § 23 paragraph 1 variant 2 StGB requires the express provision in the law. Section 266 of the Criminal Code does not contain this. Although the legislature considered introducing trial criminality within the framework of the sixth criminal law reform act of 1998, it abandoned this plan after this venture was heavily criticized in jurisprudence, particularly due to the expected problems of evidence.

Litigation and sentencing

The act is prosecuted ex officio as an official offense. By referring to Section 266 (2) of the Criminal Code to Section 247 of the Criminal Code and Section 248a of the Criminal Code, the act is exceptionally an application offense if the victim is a relative, a guardian or a carer or if the damage caused by the act is minor.

The infidelity is both accomplished and ended when, at least in part, a financial disadvantage occurs. If the financial disadvantage is a threat, termination only occurs when the risk of loss results in an actual loss or when it is certain that no loss will occur. The statute of limitations begins at the time of termination in accordance with Section 78a of the Criminal Code . The statute of limitations is five years due to the scope of penalties in accordance with Section 78 (3) StGB.

By referring to Section 266, Paragraph 2 of the Criminal Code to Section 263, Paragraph 3 of the Criminal Code, the standard examples of fraud apply accordingly to breach of trust as non-binding recommendations for tightening the punishment for the judge. A particularly severe case of infidelity is therefore if:

  1. the offender acts commercially or as a member of a gang,
  2. causes a large-scale loss of property or acts with the intention of putting a large number of people at risk of loss of property by continuing to commit breach of trust,
  3. brings another person into economic distress,
  4. misuses his powers or his position as a public official or European public official, or
  5. feigns an insured event after he or someone else has set fire to something of significant value or destroyed it in whole or in part by setting fire to it or caused a ship to sink or run aground.

Due to the reference to Section 243 (2) StGB, the assumption of a serious case of breach of trust is excluded if the damage caused by the act is minor.

Law competitions

If further offenses are committed in connection with an act according to Section 266 of the Criminal Code, these are in legal competition with infidelity . Often this occurs in connection with other property crimes.

Within Section 266 of the Criminal Code, abuse is a special case of breach of loyalty, which is why it suppresses it. However, if there is an act of abuse as well as a breach of trust, each of which leads to independent financial disadvantages, unity of act ( Section 52 StGB) is possible.

If other crimes are committed in addition to the infidelity, several competitive relationships come into consideration. Unfaithfulness is typically associated with fraud, embezzlement ( Section 246 StGB), theft ( Section 242 StGB), forgery ( Section 267 StGB) and tax evasion ( Section 370 of the Tax Code ). Unfaithfulness that has been committed in the same manner is usually also obvious in the case of bankruptcy crimes . A majority of offenses ( Section 52 of the Criminal Code) is possible in the case of bribery ( Section 332 of the Criminal Code) if both offenses are committed through separate acts.

criminology

Cases of infidelity recorded from 1987–2017.

Statistics of reported crimes

The Federal Criminal Police Office annually publishes statistics on all criminal offenses reported in Germany, the police crime statistics . This has covered the entire federal territory since 1993. The statistics from 1991 and 1992 included the old federal states and all of Berlin. Earlier statistics only cover the old federal states.

In addition to fraud, breach of trust is a central norm of property criminal law. Although the number of reported offenses is significantly lower than for fraud (2015: 966,324 offenses), the average amount of damage caused by breach of trust exceeds that of fraud by around 15 times.

After the number of reported cases increased significantly in the 1990s and then remained at just over 10,000 offenses for a few years, the number of reported cases has been falling steadily since 2012. In 2015, 7,410 cases of infidelity were recorded. At over 97%, the clearance rate is consistently at an above-average level. A high number of unreported cases is assumed, however, since the willingness to report is rather low due to the victim's concern about loss of reputation and the extremely fuzzy distinction between criminal and unpunished behavior with low amounts of damage.

Police crime statistics for infidelity in the Federal Republic of Germany
recorded cases
year all in all per 100,000 inhabitants Clearance rate
1987 4,311 7.1 98.1%
1988 4,312 7.0 99.4%
1989 4,551 7.4 99.1%
1990 5,297 8.5 100.0%0
1991 4,959 7.6 97.9%
1992 4,573 7.0 99.2%
1993 5,182 6.4 98.7%
1994 6.228 7.7 97.2%
1995 9,972 12.2 97.5%
1996 10,610 13.0 99.3%
1997 11,576 14.1 99.7%
1998 11,892 14.5 99.3%
1999 11,481 14.0 99.8%
2000 11,480 14.0 99.1%
2001 10,455 12.7 98.8%
2002 11,758 14.3 99.6%
2003 12,640 15.3 00000100.3%
2004 11,020 13.4 99.1%
2005 12,032 14.6 98.7%
2006 10,385 12.6 98.4%
2007 12,761 15.5 98.7%
2008 11.005 13.4 98.2%
2009 12,577 15.3 98.2%
2010 10.186 12.5 98.3%
2011 10,697 13.1 98.2%
2012 8,471 10.4 97.7%
2013 8,512 10.4 98.0%
2014 8,696 10.8 98.1%
2015 7,410 9.1 97.6%
2016 7.164 8.7 98.1%
2017 6,041 7.3 97.6%
  1. ↑ The police recording of cases from the previous year enables clarification rates above 100%.

Prosecution

The offense of simple infidelity is usually dealt with by the security police, more serious cases by the criminal police. Certain more serious cases of breach of trust can also count as white-collar crime . This is e.g. B. the case if a criminal chamber is responsible as a commercial criminal chamber in accordance with § 74c para. 1 sentence 1 GVG within the framework of the first instance . These are usually chambers of the regional court.

Related facts

Depot embezzlement

Section 34 of the Depot Act (DepotG) regulates the offense of deportation. According to this, anyone who illegally disposes of a security that has been entrusted to him as custodian, pledgee or commission agent in order to enrich himself is a criminal offense. The norm is subsidiary to embezzlement (§ 246 StGB) and to breach of trust (§ 266 StGB), which is why the practical significance of § 34 DepotG is extremely small.

Withholding and embezzling wages

Section 266a of the Criminal Code sanctions various abusive acts on the part of the employer in relation to pay . The standard contains several facts that pursue different purposes and therefore disapprove of several actions. What they have in common is that only employers or people in comparable positions can be considered as perpetrators.

Paragraphs 1 and 2 aim to protect the solidarity community of policyholders against the failure of mandatory contributions. Paragraph 1 covers the retention of a compulsory social security contribution that is borne by the employee. Paragraph 2, on the other hand, relates to contributions that are at least partly to be paid by the employer.

Paragraph 3 serves to protect the employee's property. According to this, anyone who withholds parts of the employee's remuneration that is to be paid to a third party and does not inform the employee about this is a criminal offense.

Abuse of check and credit cards

Section 266b of the Criminal Code protects the issuer of a check or credit card from improper use by its holder. The standard understands improper use to mean taking advantage of the opportunity to induce the issuer to make a payment using the card, without the necessary conditions in the internal relationship being met. This is the case, for example, if someone obliges the issuer to pay by means of a credit card, even though this has exceeded the credit line granted to him. This structure is like infidelity. The legislature introduced this norm in 1986 because it was doubtful whether the abuse of cards with a payment function could be based on the existing penal norms of fraud or breach of trust.

Legal situation in other states

In Austria , infidelity is regulated in Section 153 of the Criminal Code. In contrast to the German standard, the misuse of an obligation or power of disposal is the only factual act. Section 153 (2) StGB defines misuse not only as a legal transgression of this authority, but also includes the violation of rules that serve to protect the beneficial owner's assets.

In Switzerland , the breach of trust in Article 158 of the Criminal Code differentiates between unfaithful business management and the abuse of a power of representation. According to the first-mentioned alternative, anyone who violates his legal or contractual obligations in his position as asset manager, supervisory body or managing director and thereby causes the principal to be damaged in his assets is liable to prosecution. On the other hand, anyone who abuses his position as a representative and thereby damages the property of the person represented is guilty of abuse.

literature

  • Alexander Bräunig: Infidelity in Business . Duncker & Humblot, Berlin 2011, ISBN 3-428-13471-0 .
  • Stefan Burger: Infidelity (§ 266 StGB) by triggering sanctions at the expense of companies . Centaurus, Freiburg im Breisgau 2006, ISBN 978-3-8255-0640-7 .
  • Alfred Dierlamm: § 266. In: Wolfgang Joecks, Klaus Miebach (Hrsg.): Munich Commentary on the Criminal Code . 2nd Edition. tape 5 : §§ 263–358 StGB. CH Beck, Munich 2014, ISBN 978-3-406-60290-0 .
  • Lasse Dinter: The breach of duty intent of infidelity . CF Müller, Heidelberg 2012, ISBN 978-3-8114-4141-5 .
  • Thomas Fischer : Criminal Code with subsidiary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 266 .
  • Martin Heger: § 266. In: Kristian Kühl, Martin Heger: Criminal Code: Comment . 29th, revised edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 .
  • Urs Kindhäuser: § 266. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Hrsg.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  • Holger Matt: § 266 . In: Holger Matt, Joachim Renzikowski (Ed.): Criminal Code: Comment . Vahlen, Munich 2013, ISBN 978-3-8006-3603-7 .
  • Frank Saliger: § 266 . In: Helmut Satzger, Wilhelm Schluckebier, Gunter Widmaier (Ed.): Criminal Code: Commentary . 3. Edition. Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28685-7 .
  • Martin Wegenast: Abuse and breach of faith - On the relationship between the facts in § 266 StGB . Duncker & Humblot, Berlin 1994, ISBN 3-428-08132-3 .
  • Petra Wittig: § 266. In: Bernd von Heintschel-Heinegg (Hrsg.): Beckscher Online Commentary on the Criminal Code. 30th edition. 2016.

Web links

Wiktionary: Infidelity  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ a b c Alfred Dierlamm: § 266 , Rn. 20-22. In: Wolfgang Joecks, Klaus Miebach (Hrsg.): Munich Commentary on the Criminal Code . 2nd Edition. tape 5 : §§ 263–358 StGB. CH Beck, Munich 2014, ISBN 978-3-406-60290-0 .
  2. ↑ Urs Kindhäuser: § 266 , Rn. 1. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  3. ↑ BGHSt 43, 293 .
  4. ↑ Wolfgang Dunkel: Again - The credit card abuse from a criminal law perspective. In: Goldtdammer's Archiv 1977, p. 329 (334-335).
  5. ↑ Kathrin Rentrop: Infidelity and embezzlement (§§ 266 and 246 StGB): Reform discussion and legislation since the 19th century . Berliner Wissenschaftsverlag, Berlin 2010, ISBN 978-3-8305-2439-7 , p. 13 .
  6. ↑ a b c d Urs Kindhäuser: § 266 , Rn. 5-6. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  7. ↑ a b c Urs Kindhäuser: § 266 , Rn. 7-15. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  8. ↑ Urs Kindhäuser: § 266 , Rn. 17. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  9. ↑ Kathrin Rentrop: Infidelity and embezzlement (§§ 266 and 246 StGB): Reform discussion and legislation since the 19th century . Berliner Wissenschaftsverlag, Berlin 2010, ISBN 978-3-8305-2439-7 , p. 130-133 .
  10. ↑ Frank Saliger: Effects of the infidelity decision of the Federal Constitutional Court of June 23, 2010 on damage dogmatics. In: Journal for International Criminal Law Dogmatics 2011, p. 902.
  11. ↑ Walter Kargl: The concept of abuse of infidelity (§ 266 StGB). In: Journal for the entire criminal law science 113, p. 565 (589).
  12. ^ Rudolf Rengier: Criminal Law Special Part I: Property offenses . 18th edition. CH Beck, Munich 2016, ISBN 978-3-406-68816-4 , § 18, Rn. 1a.
  13. ↑ BVerfGE 126, 170 (194).
  14. ↑ Federal Constitutional Court: 2 BvR 1980/07. In: Neue Juristische Wochenschrift 2009, p. 2370.
  15. ↑ BVerfGE 126, 170 (198).
  16. ↑ BGHSt 1, 186 (187).
  17. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 34, marginal no. 7th
  18. ^ Rudolf Rengier: Criminal Law Special Part I: Property offenses . 18th edition. CH Beck, Munich 2016, ISBN 978-3-406-68816-4 , § 18, Rn. 4th
  19. ↑ Urs Kindhäuser: § 266 , Rn. 19. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  20. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 34, marginal no. 3.
  21. ↑ a b Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 34, marginal no. 9.
  22. ↑ BGHSt 5, 61 (61-63).
  23. ↑ Johannes Wessels, Thomas Hillenkamp: Criminal Law Special Part 2: Offenses against assets . 38th edition. CF Müller, Heidelberg 2015, ISBN 978-3-8114-4036-4 , Rn. 752
  24. ^ LG Bonn, judgment of July 14, 2011, 2 Ss 80/11 = Neue Zeitschrift für Strafrecht 2012, p. 330 (330–331).
  25. ^ Rudolf Rengier: Criminal Law Special Part I: Property offenses . 18th edition. CH Beck, Munich 2016, ISBN 978-3-406-68816-4 , § 18, Rn. 8th.
  26. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 34, marginal no. 11-13.
  27. ^ A b Wolfgang Mitsch: Criminal Law, Special Part 2: Property offenses . 3. Edition. Springer Science + Business Media, Berlin 2015, ISBN 978-3-662-44934-9 , pp. 367-368 .
  28. ↑ a b Alfred Dierlamm: § 266 , Rn. 138. In: Wolfgang Joecks, Klaus Miebach (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 5 : §§ 263–358 StGB. CH Beck, Munich 2014, ISBN 978-3-406-60290-0 .
  29. ↑ Martin Heger: § 266 , Rn. 6. In: Kristian Kühl, Martin Heger: Criminal Code: Comment . 29th, revised edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 .
  30. ^ Frank Saliger: § 266 , Rn. 22. In: Helmut Satzger, Wilhelm Schluckebier, Gunter Widmaier (eds.): Criminal Code: Commentary . 3. Edition. Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28685-7 .
  31. ^ Alfred Dierlamm: § 266 , Rn. 140. In: Wolfgang Joecks, Klaus Miebach (Hrsg.): Munich Commentary on the Criminal Code . 2nd Edition. tape 5 : §§ 263–358 StGB. CH Beck, Munich 2014, ISBN 978-3-406-60290-0 .
  32. ↑ BGHSt 36, 227 (228).
  33. ^ Walter Stree, Nikolaus Bosch: § 266 , Rn. 1a. In: Adolf Schönke, Horst Schröder, Albin Eser (eds.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  34. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 34, marginal no. 15th
  35. ↑ BGH, judgment of November 7, 1996, 4 StR 423/96 = New Journal for Criminal Law 1997, p. 125.
  36. ↑ BGHSt 30, 247 (249).
  37. ↑ RGSt 71, 353 (355-356).
  38. ↑ a b BGHSt 3, 23 (25).
  39. ↑ BGHSt 9, 203 (216).
  40. ↑ a b BGHSt 35, 333 (337).
  41. ↑ BGHSt 55, 266 .
  42. ^ Alfred Dierlamm: § 266 , Rn. 158. In: Wolfgang Joecks, Klaus Miebach (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 5 : §§ 263–358 StGB. CH Beck, Munich 2014, ISBN 978-3-406-60290-0 .
  43. ^ A b Wolfgang Mitsch: Criminal Law, Special Part 2: Property offenses . 3. Edition. Springer Science + Business Media, Berlin 2015, ISBN 978-3-662-44934-9 , pp. 377-380 .
  44. ↑ BGHSt 46, 30 .
  45. ↑ a b BGHSt 47, 187 .
  46. ↑ BGHSt 50, 331 .
  47. ↑ Petra Wittig: § 266 , Rn. 19. In: Bernd von Heintschel-Heinegg (Ed.): Beckscher Online Commentary on the StGB. 30th edition 2016.
  48. ↑ Urs Kindhäuser: § 266 , Rn. 73. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Hrsg.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  49. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 34, marginal no. 19-21.
  50. ↑ BGHSt 47, 187 (197).
  51. ↑ BGHSt 47, 148 (150).
  52. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 34, marginal no. 26th
  53. ↑ Johannes Wessels, Thomas Hillenkamp: Criminal Law Special Part 2: Offenses against assets . 38th edition. CF Müller, Heidelberg 2015, ISBN 978-3-8114-4036-4 , Rn. 750
  54. ↑ a b c Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 34, marginal no. 28-31.
  55. ^ Alfred Dierlamm: Infidelity - a catchphrase? In: New Journal for Criminal Law 1997, p. 534.
  56. ^ Alfred Dierlamm: § 266 , Rn. 47. In: Wolfgang Joecks, Klaus Miebach (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 5 : §§ 263–358 StGB. CH Beck, Munich 2014, ISBN 978-3-406-60290-0 .
  57. ↑ BGHSt 13, 330 (332).
  58. ^ BGH, judgment of March 5, 2013, 3 StR 438/12 = Neue Juristische Wochenschrift 2013, p. 1615.
  59. ^ A b Rudolf Rengier: Criminal Law Special Part I: Property Offenses . 18th edition. CH Beck, Munich 2016, ISBN 978-3-406-68816-4 , § 18, Rn. 19-20.
  60. ↑ BGHSt 3, 289 (293-294).
  61. ↑ BGHSt 13, 315 (317).
  62. ↑ BGHSt 13, 315 .
  63. ↑ BGHSt 47, 295 (297).
  64. ^ BGH, judgment of September 8, 1982, 3 StR 147/82 = New Journal for Criminal Law 1983, p. 74.
  65. ↑ OLG Düsseldorf, judgment of November 24, 1997, 5 Ss 342/97 = Neue Juristische Wochenschrift 1998, p. 690 (690-691).
  66. ^ BGH, judgment of October 30, 1985, 2 StR 383/85 = New Journal for Criminal Law 1986, p. 361.
  67. ^ BGH, judgment of July 12, 1994, 1 StR 300/94 = criminal defense lawyer 1995, p. 73.
  68. ↑ BGH, judgment of September 21, 1988, 3 StR 358/88 = criminal defense lawyer 1989, p. 59.
  69. ↑ BGHSt 41, 224 .
  70. ↑ BGHSt 52, 182 (184).
  71. ^ Rudolf Rengier: Criminal Law Special Part I: Property offenses . 18th edition. CH Beck, Munich 2016, ISBN 978-3-406-68816-4 , § 18, Rn. 26th
  72. ^ Alfred Dierlamm: § 266. Rn. 124. In: Wolfgang Joecks, Klaus Miebach (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 5 : §§ 263–358 StGB. CH Beck, Munich 2014, ISBN 978-3-406-60290-0 .
  73. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 34, marginal no. 35.
  74. ↑ a b BGHSt 8, 254 .
  75. ↑ a b BGHSt 20, 143 .
  76. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 34, marginal no. 27.
  77. ↑ a b Alfred Dierlamm: § 266 , Rn. 170-171. In: Wolfgang Joecks, Klaus Miebach (Hrsg.): Munich Commentary on the Criminal Code . 2nd Edition. tape 5 : §§ 263–358 StGB. CH Beck, Munich 2014, ISBN 978-3-406-60290-0 .
  78. ↑ BGH, judgment of April 13, 2010, 5 StR 428/09 = Neue Zeitschrift für Strafrecht 2010, p. 632.
  79. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 34, marginal no. 40.
  80. ^ Alfred Dierlamm: § 266 , Rn. 184. In: Wolfgang Joecks, Klaus Miebach (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 5 : §§ 263–358 StGB. CH Beck, Munich 2014, ISBN 978-3-406-60290-0 .
  81. ↑ a b c BGHSt 52, 323 .
  82. ^ Alfred Dierlamm: § 266 , Rn. 200. In: Wolfgang Joecks, Klaus Miebach (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 5 : §§ 263–358 StGB. CH Beck, Munich 2014, ISBN 978-3-406-60290-0 .
  83. ↑ a b Alfred Dierlamm: § 266 , Rn. 161-162. In: Wolfgang Joecks, Klaus Miebach (Hrsg.): Munich Commentary on the Criminal Code . 2nd Edition. tape 5 : §§ 263–358 StGB. CH Beck, Munich 2014, ISBN 978-3-406-60290-0 .
  84. ↑ BGHSt 46, 30 (30-34).
  85. ↑ BGH, judgment of July 10, 1996, 3 StR 50/96 = Neue Juristische Wochenschrift 1997, p. 66.
  86. ↑ BGHSt 37, 226 .
  87. ↑ BGHSt 20, 304 .
  88. ↑ BGH, judgment of 11 November 1982, 4 StR 406/82 = Neue Juristische Wochenschrift 1983, p. 462.
  89. ↑ Martin Heger: § 266 , Rn. 17. In: Kristian Kühl, Martin Heger: Criminal Code: Commentary . 29th, revised edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 .
  90. ^ Alfred Dierlamm: § 266 , Rn. 201. In: Wolfgang Joecks, Klaus Miebach (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 5 : §§ 263–358 StGB. CH Beck, Munich 2014, ISBN 978-3-406-60290-0 .
  91. ↑ Wolfgang Mitsch: Criminal Law, Special Part 2: Property Offenses . 3. Edition. Springer Science + Business Media, Berlin 2015, ISBN 978-3-662-44934-9 , pp. 315 .
  92. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 27, marginal no. 57.
  93. ↑ BGHSt 31, 232 .
  94. ↑ Urs Kindhäuser: § 266 , Rn. 94. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  95. ↑ BGHSt 20, 304 (304-305).
  96. ↑ Marco Mansdörfer: The endangerment of property as a disadvantage in the sense of the infidelity offense . In: Legal Training 2009, p. 114.
  97. ↑ Thomas Fischer : Penal Code with ancillary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 266, Rn. 150.
  98. ^ Alfred Dierlamm: § 266 , Rn. 212. In: Wolfgang Joecks, Klaus Miebach (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 5 : §§ 263–358 StGB. CH Beck, Munich 2014, ISBN 978-3-406-60290-0 .
  99. ^ LG Bonn, judgment of February 28, 2001, 27 AR 2/01 = Neue Zeitschrift für Strafrecht 2001, p. 375 (376).
  100. ↑ BGHSt 51, 100 .
  101. ↑ Vanessa Saam: "Black Kassen" and criminal infidelity. In: Online magazine for highest judicial jurisprudence on criminal law. 2015, accessed October 30, 2016 .
  102. ^ BGH, judgment of February 27, 1975, 4 StR 571/74 = Neue Juristische Wochenschrift 1975, p. 1236.
  103. ^ BGH, judgment of June 12, 1990, 5 StR 268/89 = Neue Juristische Wochenschrift 1990, p. 3219 (3220).
  104. ^ Alfred Dierlamm: § 266 , Rn. 219-223. In: Wolfgang Joecks, Klaus Miebach (Hrsg.): Munich Commentary on the Criminal Code . 2nd Edition. tape 5 : §§ 263–358 StGB. CH Beck, Munich 2014, ISBN 978-3-406-60290-0 .
  105. ^ Alfred Dierlamm: § 266 , Rn. 226. In: Wolfgang Joecks, Klaus Miebach (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 5 : §§ 263–358 StGB. CH Beck, Munich 2014, ISBN 978-3-406-60290-0 .
  106. ↑ Uwe Hellmann: Risk business and infidelity criminality. In: Journal for International Criminal Law Doctrine 2007, p. 433 (441).
  107. ↑ Bernd Schünemann: Against common heresies on the unfaithful offense. In: Journal for international criminal law dogmatics 2012, p. 183 (185).
  108. ↑ BVerfGE 126, 170 (185, 226).
  109. ↑ BVerfGE 126, 170 (223).
  110. ↑ BVerfGE 126, 170 (185, 215).
  111. ↑ BGHSt 15, 342 .
  112. ↑ RGSt 75, 227 (230).
  113. ↑ BGHSt 43, 293 .
  114. ↑ Friedrich Florian Steinert: The budget infidelity after the Schäch decision of the BVerfG. In: Online magazine for highest judicial jurisprudence on criminal law. February 2014, accessed October 31, 2016 .
  115. ^ Alfred Dierlamm: § 266 , Rn. 208. In: Wolfgang Joecks, Klaus Miebach (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 5 : §§ 263–358 StGB. CH Beck, Munich 2014, ISBN 978-3-406-60290-0 .
  116. ↑ Jan Schlösser: Restrictions on the theory of personal damage impact. In: Online magazine for highest judicial jurisprudence on criminal law. October 2014, accessed October 31, 2016 .
  117. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 34, marginal no. 45.
  118. ↑ a b Marco Mans villages: The asset risk as a disadvantage in the sense of infidelity facts. In: Juristische Schulung 2009, p. 114 (115).
  119. ↑ a b BGHSt 37, 226 .
  120. ^ Alfred Dierlamm: § 266 , Rn. 282. In: Wolfgang Joecks, Klaus Miebach (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 5 : §§ 263–358 StGB. CH Beck, Munich 2014, ISBN 978-3-406-60290-0 .
  121. ↑ BGHSt 47, 148 .
  122. ↑ BGHSt 26, 54 .
  123. ↑ BGHSt 26, 54 (55).
  124. ^ A b Thomas Fischer : Criminal Code with subsidiary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 266, Rn. 185-186.
  125. ↑ BT-Drs. 13/8587 , p. 43.
  126. ^ Alfred Dierlamm: § 266 , Rn. 22. In: Wolfgang Joecks, Klaus Miebach (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 5 : §§ 263–358 StGB. CH Beck, Munich 2014, ISBN 978-3-406-60290-0 .
  127. ↑ Thomas Fischer : Penal Code with ancillary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 266, Rn. 187.
  128. ↑ a b Alfred Dierlamm: § 266 , Rn. 284. In: Wolfgang Joecks, Klaus Miebach (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 5 : §§ 263–358 StGB. CH Beck, Munich 2014, ISBN 978-3-406-60290-0 .
  129. ^ A b Thomas Fischer : Criminal Code with subsidiary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 266, Rn. 194.
  130. ↑ BGHSt 18, 312 (313).
  131. ↑ a b c d PKS time series 1987 to 2017. (CSV) Federal Criminal Police Office, May 8, 2018, accessed on October 10, 2018 .
  132. ↑ Police crime statistics. Federal Criminal Police Office, accessed on October 3, 2017 .
  133. ^ A b Thomas Fischer : Criminal Code with subsidiary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 266, Rn. 3.
  134. ↑ Urs Kindhäuser: § 266 , Rn. 27. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  135. ↑ Frank Zieschang: Section 34 DepotG , Rn. 2. In: Tido Park, Ute Bottmann (ed.): Capital market criminal law: criminal offenses, administrative offenses, financial supervision, compliance; Hand comment . 5th edition. Nomos, Baden-Baden 2019, ISBN 978-3-8487-4935-5 .
  136. ↑ Thomas Fischer : Penal Code with ancillary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 266a, Rn. 2.
  137. ↑ Thomas Fischer : Penal Code with ancillary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 266a, Rn. 22a.
  138. ↑ Thomas Fischer : Penal Code with ancillary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 266b, Rn. 15th
  139. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 36, marginal no. 16.
  140. ↑ Thomas Fischer : Penal Code with ancillary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 266b, Rn. 3.
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