Thwarting foreclosure

from Wikipedia, the free encyclopedia

Thwarting foreclosure is a criminal offense of the German Criminal Code. It is regulated in the twenty-fifth section of the Criminal Code , headed “Punishable self-interest”, in Section 288 of the Criminal Code.

The rule is:

(1) Anyone who is threatened with foreclosure with the intention of thwarting the satisfaction of the obligee, sells or removes parts of his property, shall be punished with imprisonment of up to two years or with a fine.

(2) The offense will only be prosecuted upon request.

Objective fact

According to the prevailing opinion , the act is a special offense that can only be committed by those who are threatened with foreclosure . Persons other than the enforcement debtor can therefore not be punished for committing a perpetrator, but only for participating in a criminal offense. A lesser opinion, on the other hand, is based on an understanding of the provision as a quasi- personal crime . If the enforcement debtor is a legal person or a partnership with legal capacity, criminal liability of their organs or representatives is only possible according to the principles of criminal liability for organs and representatives .

Furthermore, the threatened enforcement must be based on a justified claim of the obligee , so that the provision is not relevant if enforcement is to be made from null and void titles .

The act of offense is the sale or removal of an asset if it results in the realization of the claim to be enforced becoming impossible or significantly more difficult.

Subjective fact

Subjectively, the offense requires willful action on the part of the offender, with conditional intent being sufficient. Since the law requires action with the intention of thwarting foreclosure, there is no intent even if the perpetrator acts on the erroneous assumption that the remaining assets will be sufficient to satisfy the creditor's claim.

Application offense

The offense is only prosecuted following a criminal complaint . The enforcement creditor whose enforcement options are restricted by the act is entitled to apply.