Property offense (Germany)

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Property offenses is a comprehensive term in German criminal law for all criminal offenses that are directed against the assets or assets of other people.

Property crimes in the broader and narrower sense

A distinction is made between property crimes in the broader and in the narrower sense. The distinction is made according to whether the occurrence of pecuniary damage is a condition or whether it is only a regular accompaniment to the fulfillment of the facts. Property crimes in the broader sense include, for example, property crimes such as theft ( Section 242 StGB ) or property damage ( Section 303 StGB). In the case of these offenses, things that are economically worthless are also protected, but the removal or damage will usually also represent financial loss.

Property crimes in the narrower sense presuppose a reduction in the victim's property and thus property damage. Property is the protected asset of property crimes.

Criminal property concept

Since the protected right of property offenses the assets is regularly raises the question of the extent of criminal assets term. It is controversial; a completely satisfactory definition of criminal property has not yet been found.

There are essentially four schools of thought:

Strictly legal concept of property

The strictly legal concept of property was based on the assumption that property in the criminal sense is the entirety of the legal positions assigned to a person by the legal system. This concept of property was given up very early in the case law by the Reich Court . In the legal literature, too, this wealth theory can be viewed as completely abandoned.

The core problem, which is why this theory has been abandoned, is the question of whether the fraud is punishable under criminal offenders or whether this lawless areas can be allowed. Example: Can a thief be cheated of his share of the booty by his accomplices?

In the jurisprudence predominant economic term of assets

The economic wealth theory avoids the problem of legal free spaces between criminals. This wealth theory assumes that wealth includes any position that in some way constitutes an economic, i.e. H. has a value that can be denoted in money. The legal assignment and legal evaluations are irrelevant in this respect. Those economic positions that were obtained in an illegal or immoral manner are also protected .

This concept of wealth is problematic, but it is the concept that is used in practice, albeit with modifications.

Legal and economic concept of wealth

The legal and economic concept of wealth tries to combine the strictly legal and economic wealth theory. The theory is widely used in legal literature. According to it, all monetary items should initially belong to the assets, including those items that are not recognized by the legal system.

This concept of property has the advantage that some acts that are not intended by the legal system are not punishable. Example: A person who pretends to be a contract killer and has no intention of killing someone is not liable to prosecution for fraud ( Section 263 StGB) if he does not kill the victim but allows himself to be paid for it. According to economic wealth theory, such an act would be punishable as fraud.

However, the legal-economic wealth theory runs the risk of creating loopholes in criminal liability . Example: A thief feigns an accomplice that a painting has not been captured and sells it for his own benefit.

Personal wealth theory

The personal property doctrines are not based on the objective allocation of individual property items, but on the fact that the property offense should protect the power of disposal over the property. The advantage of these views can be explained using the so-called milking machine case: someone sold a milking machine to a farmer at a reasonable price, claiming that he could use it for his business. In fact, it was vastly oversized and the farmer couldn't use it.

The problem is the determination of the assumed financial loss in the offense. Ultimately, with consistent use, this will always be a purely subjective damage. This cannot be determined in a satisfactory manner by a court . That is why this approach never caught on.

Differentiation between property offenses and property offenses in the narrower sense

Distinction between property offenses and property offenses regularly arise . These are not carried out by delimiting the objects of protection, but as a rule by means of a delimitation according to whether it is a "act of act" or an act of "taking". The decisive factor here is whether a person entitled - also through failure - has an asset at his disposal, or whether the perpetrator “takes” the thing against or without the will of the person entitled.

This delimitation is problematic in the case of robbery ( § 249 StGB), a property crime, and in the case of robbery extortion , a property crime. Both presuppose threat or violence in order to break the will of the victim . The case law therefore delimits these facts according to their external appearance. The decisive factor is whether the victim surrenders the booty or the perpetrator takes the booty in an act of taking. Example: If the victim surrenders the money at gunpoint (beaten), it should be robbery blackmail. If the perpetrator takes his wallet at gunpoint, the offense is, however, robbery according to case law. The literature review , however, will be when the threat (or violence) can be the victim no decision possibility always accept robbery.

Individual property offenses in the narrower sense

literature