Fortune (law)

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The asset is an undefined legal term . which in the law includes all pecuniary rights of a legal subject .


The word wealth occurs in many laws , but there it is defined differently depending on the purpose of the law . The Reichsgericht (RG) recognized as early as December 1910 that the legal term “property is primarily a term of economic life”. It thus took the position that the legal concept of wealth should be derived from the economic one. The legal concept of assets aims to protect the legal asset "assets" ( civil law , criminal law ), to clarify its liability as corporate or private assets ( corporate law ) or to determine the need for assistance with the help of assets ( social law ).

Assets is an entity for several independent things that are connected by a common economic purpose , but can only develop their value as a unit and which are summarized in the market view under a uniform term ("assets"). The entity expresses the different types of rights to property.


Property ( Latin bona , patrimonium ) played a central role in Roman law . Within the legal capacity one knew the capacity to have one's own property. Children were legally but not financially capable. Since things ( Latin res ) represent the most essential means for people (for food , consumption or use ), the Romans created rules about the acquisition of such things for the purpose of property ( Latin dominium ). All of this property was called property (after deduction of debts ).

For a long time in the Middle Ages, the noun “property” did not exist, only the verb “be able” in the sense of “able, able”. From an Upper Austrian wisdom from the year 1539 the substantive use emerges for the first time that "ain every burger ... his fortune ... aines should pay tax every year at sworn aid". This is also the first indication of a wealth tax .

The General Prussian Land Law (APL) of June 1794 knew "baares assets" (I 2, § 11 APL) or "movable assets" (I 2, § 10 APL). For Carl von Savigny in 1840 “the debts were to be regarded as part of the property”, who then defined the property as “the sum of rights that remain for the owner after deduction of the debts”. He described wealth as the totality of legal relationships that extend the power of the individual beyond the natural limits of his being. With this, lawyers recognized for the first time that wealth as such can contribute to power .

The German Criminal Code , which came into force in May 1872, mentions the term property 56 times. In addition to the property fine the ability to play in the property crimes extortion ( § 253 of the Criminal Code), receiving stolen property ( § 259 of the Criminal Code), fraud ( § 263 StGB), computer fraud ( § 263a of the Criminal Code), investment fraud ( § 264a of the Criminal Code), credit fraud ( § 265b of the Criminal Code) , Infidelity ( § 266 StGB) and bankruptcy ( § 283 StGB) play a central role. The point here is that these crimes are directed against property in general or against specific assets of other people. It was necessary to clarify what belongs to the assets of the perpetrator or victim and therefore fulfills the criminal offense .

The Commercial Code (HGB) from January 1900 led to companies the legal concepts assets (with the Under terms intangible assets , property and equipment and financial assets ) and working capital one ( § 266 HGB). This categorization followed the general economic classification of asset types. In the BGB , which also came into force in January 1900 , the term property occurs 239 times.


The assets in the legal sense are all commercialized goods , the so against remuneration sold can be and a market value have. Assets do not include worthless goods or debts , because the laws assume that debts are a burden on active assets .

civil right

In civil law, the concept of property can have a different content for each legal norm . One of the main goals of the BGB is legal protection in favor of property. “Only the rights, not also the obligations of a person form their assets in the sense of the private law (liability law) asset concept. The definition of assets used in the BGB, but also in enforcement and bankruptcy law , therefore, unlike a purely economic concept of assets, only includes the so-called assets on the balance sheet , not also the liabilities . The assets in the legal sense are the gross assets , not the net assets , if by this one understands the difference between the assets and the liabilities. ”The gross assets minus the debts form the net assets . Assets under civil law therefore always gross assets as at inheritance assets of § 1922 para. 1 BGB. The debtor is liable for its obligations with all its assets against the creditor .

In principle, assets are not protected as such under German law, so they can only be "injured" or damaged in exceptional cases. It does not fall under the protection of the “special right” within the meaning of Section 823 (1) BGB. Mere pecuniary losses are  eligible as protective laws from § 826  BGB as well as § 823 Abs. 2 BGB in connection with § 263 , § 266 StGB.

The concept of wealth is not defined in the BGB itself, although it is often used. In particular, it is of central importance for compensation , where primarily the involuntary loss of assets is to be compensated. In inheritance law , the heir generally becomes the legal successor to the entire property of the testator by way of universal succession ( § 1922  BGB). This is a special feature under inheritance law. The rule of civil law is the singular succession , according to which all assets have to be transferred individually so that one cannot dispose of one's assets as a whole.

In insolvency law , the settlement is based on the debtor's assets ( Section 35  InsO). In the list of debtors all physical objects in the property of the debtor as well as receivables to be included ( § 802c para. 2 ZPO).

Criminal law


In criminal law, assets are the totality of the goods and positions of a person with measurable economic value to which the owner of the asset is entitled under the legal system . According to the Reichsgericht (RG), assets are "economic power, i.e. everything that has a value for the economic circumstances of a person." Since every value can be expressed in money, it is ultimately about the "sum of the monetary goods of a person". In its first decision on this question in November 1951, the Federal Court of Justice (BGH) stated that the claim from an immoral or illegal transaction could, under certain circumstances, be included in economic assets.

According to the case law of the BGH, property within the meaning of §§ 253, 263 StGB also includes the unauthorized possession of narcotic drugs , because the criminal law concept of property is to be considered economically. In the area of ​​property offenses, the legal system does not recognize property that is simply unworthy of protection because of its origin, creation or use.

Wealth theories

Through specialist literature and jurisprudence , three main theories of wealth have developed in criminal law.

Legal wealth theory

The legal property theory , represented in particular by Karl Binding and Adolf Merkel , saw in property the sum of the subjective property rights recognized by the legal system and enforceable with it, regardless of their economic value. She also counted as property that which had no economic value; on the other hand, it ignored positions of monetary value that are not subjective rights (such as entitlements ). The jurisprudence of the Reichsgericht initially used this legal concept of property as a basis for determining the property protected by criminal law. However, this theory led to legal vacancies in legal practice , because fraud among criminals remained unpunished (“deceived thief”). As a result, it no longer has any support in jurisprudence or specialist literature.

Economic wealth theory

Even if it is called economic wealth theory , it also has legal implications. In December 1910, the RG clearly stated: “There is no such thing as a criminally unprotected property”. However, it was still based on the assumption that "a claim that does not exist under substantive law cannot be part of anyone's property and therefore cannot be withdrawn by fraud from those who assert it". It was only in November 1951 that the BGH made it clear that “values ​​that someone possesses as a result of immoral, illegal or even criminal acts can also be the subject of property damage within the meaning of Section 263 StGB”. The economically oriented point of view assumes that there are no assets that are unprotected against fraud, extortion, breach of trust, etc. According to this, wealth is the totality of the monetary goods of a person regardless of their legal existence. Accordingly, unlawfully obtained positions (such as stolen goods) or void (because an immoral claim) or unenforceable claims ( statute-barred claim) also belong to assets if they have an asset because of their actual enforceability. The statute-barred claim is therefore part of the property if its debtor pays it despite the statute of limitations. It is believed that there are no legally unprotected assets.

The legality of the acquired property is therefore irrelevant. Therefore, property obtained through theft is also a criminally protected property. Void claims (which violate a legal prohibition [ § 134 BGB] or are immoral [ § 138 BGB]) are also protected as assets under criminal law.

Legal-economic wealth theory

It starts from the economic point of view and counts all items of monetary value as assets, but does not take into account the items that are disapproved by the rest of the legal system when it comes to criminal assets. In this way, it avoids the contradictions in valuation of the other theories of wealth: If a position of wealth contradicts the non - criminal legal system, then the legal-economic wealth theory does not grant it any protection under criminal law. After that, possession / custody is also part of property. The legal and economic concept of wealth only includes those economic goods of a person to which they are entitled under civil law. According to this definition, for example, there cannot be a “deceived thief”. According to this, an asset position must not only have value, but also be protected by law. The advocates of the legal and economic concept of assets therefore consistently deny an asset in the case of claims that are void due to immorality or assets acquired illegally. The legal and economic theory of wealth is the prevailing opinion today .

The consequence of this theory is that some legal acts that are deprecated by the legal system are not punishable. Their application increases the risk of gaps in criminal liability .

Demarcation from economic assets

The legal and economic concepts of wealth differ from one another. According to a well-established view, the legal objects themselves do not count as assets, only the rights to them. Therefore, for example, the things belonging to a person themselves do not belong to the property in the legal sense, but only the rights that exist in these things, e.g. As the property , which in turn recycled can be. Andreas von Tuhr made a clear distinction in 1957: “The objects of the rights belonging to the property are not direct components of property; the property consists of the ownership of the items that belong to the entitled person, not of the items themselves, of the claims, not of the objects of performance that can be demanded by virtue of the claim. ”In 1989, Karl Larenz defined property as“ a sum, a summary of rights and legal relationships with regard to a specific person to whom they are due. ... From a legal point of view, things as first-order legal objects cannot be brought to the same denominator with rights as second-order legal objects. It should therefore read: property rights to land, property rights to movable property, claims and other rights. "

Social law

When checking the need for assistance , the income and assets of the beneficiary are taken into account in social law . According to established case law , the distinction between income and assets is based on the fact that assets are what a benefit recipient already has in their time of need, while income is what the benefit recipient receives in terms of value in their time of need. In this case, the point in time of the inflow must be taken into account, unless otherwise stipulated by legal norms, for example in the case of an inheritance which, according to Section 1922 BGB, passes to the heirs at the time of inheritance and is therefore considered income under social assistance law if the inheritance occurs while receiving benefits. According to the case law of the Federal Social Court, the meaning and purpose of the benefit should also result in a different regulation for the child allowance , so that an additional payment of the child allowance for past periods is not income but assets.

In social law, assets play an essential role in assessing the need for assistance in the context of basic security for job seekers . According to Section 12 (1) SGB ​​II , all realizable assets are to be considered as assets . The Federal Social Court (BSG) assumes in its case law on Section 12 (1) SGB II of assets that an applicant already had before the application was made; if an inheritance occurs before the application is filed, it is a question of property. Assets include money and monetary values ​​such as cash or checks , movable and immovable items such as land or jewelry and other rights such as claims , securities , bank balances , usufruct , easements, etc., but must be used both in SGB II ( Section 12 (1) SGB II) as well as in SGB ​​XII ( § 90 Abs. 1 SGB XII) only the realizable assets . Assets are recyclable if its objects used, transmitted and can be charged. The exploitation must bring a return for the person concerned, with which he can earn his living , even if only for a short time . Assets cannot be used if no buyer can be found in the foreseeable future, for example because objects of this type are no longer marketable or because they are encumbered above their market value , such as land due to falling property prices . Assets are also not usable if there are actual or legal obstacles, for example if the realization of an estate depends on the consent of the co-heir , but who refuses the dispute for an indefinite period of time. If the assets cannot be used immediately but in the foreseeable future, social benefits are to be granted as loans ( Section 24 (5) SGB II, Section 91 SGB ​​XII).

Assets are not considered usable, at least in SGB II, even if the exploitation would be obviously uneconomical ( Section 12 (3) sentence 1 point 6 SGB II). This is an indefinite legal term that is subject to full control by the courts and must always be decided on a case-by-case basis. To what extent this also applies in SGB XII has so far been left open by the courts.

Assets do not have to be realized if they belong to the so-called protective assets . Which items are specifically to be counted as safe assets is regulated in the respective laws, in particular § 12 Paragraph 3 SGB II, § 90 Paragraph 2 SGB XII and the related ordinances such as Unemployment Benefit II / Social Allowance Ordinance and the ordinances on Implementation of Section 82 and Section 90 (2) No. 9 of Book Twelve of the Social Code .

Individual evidence

  1. Welf Müller, In which direction is the definition of equity under accounting law developing? , in: Accountability in Change, Festschrift for Wolfgang Dieter Budde, 1995, p. 450 f.
  2. RGSt 44, 230, 233
  3. ^ Baron Fritz von Schwind, Roman Law , Volume I, 1950, p. 138
  4. ^ Digest , l. de jure fisci 49, 14
  5. Ulrike Köbler, Werden, Wandel und Wesen des German private law vocabulary , 2010, pp. 203 ff.
  6. ^ Imperial Academy of Sciences, Österreichische Weistümer , Volume 15, 1867, p. 74
  7. ^ A b Carl von Savigny, System of Today's Roman Law , Volume 1, 1840, p. 376
  8. ^ Carl von Savigny, System of Today's Roman Law , Volume 1, 1840, p. 339 f.
  9. Otto Palandt / Christian Grüneberg, BGB commentary , 73rd edition, 2014, preparation before § 249, marginal no. 11
  10. Carl Creifelds , Legal Dictionary , 2000, p. 1441
  11. Ursula Nelles, Infidelity to the disadvantage of societies , 1991, p. 317
  12. ^ Karl Larenz , General Part of German Civil Law , 7th, revised edition, 1989, p. 306, ISBN 3-406-33414-8
  13. ^ Karl Larenz, General Part of German Civil Law , 7th, revised edition, 1989, p. 307
  14. Arndt Teichmann, in: Othmar Jauernig (Ed.). BGB. 11th, revised edition. Munich. 2004. ISBN 3-406-51820-6 . § 823 BGB Rn. 19th
  15. Arndt Teichmann, in: Othmar Jauernig (Ed.). BGB. 11th, revised edition. Munich. 2004. ISBN 3-406-51820-6 . § 826 BGB Rn. 5
  16. Otto Palandt / Hartwig Sprau, BGB Commentary , 67th, revised edition, 2008. ISBN 978-3406565915 . § 823 BGB Rn. 69
  17. Wilfried Küper / Jan Zopfs, Criminal Law Special Part: Definitions with Explanations , 2015, p. 371
  18. ^ RG, decision of December 14, 1910, Az .: II 1214/10, RGSt 44, 230, 233
  19. BGH, judgment of November 25, 1951, Az .: 4 StR 574/51, BGHSt 2, 364, 365 ff.
  20. BGHSt 8, 254, 256; BGH NStZ-RR 1999, 184, 185 f.
  21. ^ Karl Binding, Textbook of the Common German Criminal Law, Special Part , 1st Volume, 2nd Edition, Leipzig 1902, p .240
  22. RGSt 3, 332, 333
  23. RGSt 44, 230, 249
  24. RGSt 44, 230, 236
  25. BGHSt 2, 364, 365
  26. a b BGHSt 2, 364
  27. BGHSt 16, 22
  28. BGHSt 2, 364, 366
  29. Caspar Luig, contract doctor billing fraud and damage determination , 2009, p. 104
  30. ^ Karl Larenz, General Part of German Civil Law , 7th, revised edition, 1989, p. 306, ISBN 3-406-33414-8
  31. ^ Andreas von Tuhr, Der Allgemeine Teil des Deutschen Bürgerlichen Rechts , Volume I, 1957, § 18 II, p. 318
  32. ^ Karl Larenz, General Part of German Civil Law , 7th, revised edition, 1989, p. 306
  33. BSG, judgment of July 30, 2008, Az .: B 14 AS 26/07 R
  34. BSG, judgment of January 25, 2012, Az .: B 14 AS 101/11 R
  35. BSG, October 25, 2017, AZ B 14 AS 35/16 R
  36. BSG, judgment of January 25, 2012, Az .: B 14 AS 101/11 R
  37. Brühl / Geiger in LPK-SGB XII, 8th edition, § 90 Rn 6
  38. Brühl / Geiger in LPK-SGB XII, 8th edition, § 90 Rn 7
  39. Brühl / Geiger in LPK-SGB XII, 8th edition, § 90 Rn 8
  40. ^ BSG, judgment of March 22, 2012, Az .: B 4 AS 99/11 R
  41. BSG, judgment of 6 December 2007, Az .: B 14 / 7b AS 46/06 R
  42. BSG, judgment of January 27, 2009, Az .: B 14 AS 42/07 R
  43. BSG, judgment of February 20, 2014, Az .: B 14 AS 10/13 R
  44. ^ BSG, judgment of August 25, 2011, A .: B 8 SO 19/10 R
  45. Ordinance for the implementation of Section 82 of Book Twelve of the Social Code
  46. Ordinance on the implementation of Section 90, Paragraph 2, No. 9 of Book Twelve of the Social Code