Property offense

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As property crimes are called in criminology and criminal law offenses that are against the assets set.

Right families

Roman law

The most important property offense for Roman law was the furtum. A distinction was made - similar to the distinction between robbery and theft in medieval German law - for the penalty between fur manifestum and fur nec manifestum , i.e. according to whether the thief was still caught on the day of the crime. A distinction according to whether the perpetrator had the thing in custody (comparable to theft and embezzlement) was unknown. Fraudulent behavior also fell under the offense of the furtum . There was no general offense that made the movement of assets through deception a criminal offense. Rather, there were individual offenses for this, such as the fraus patroni for fraudulent discrimination against a wards and the crimen falsi.

Common law

In a comparison of the legal arrangements, English criminal law shows an example of a single-track basic concept with a wide unified set of facts of the following basic type:

"Anyone who intends to obtain an unlawful pecuniary advantage for himself (or a third party?), Damages the property of another by appropriating movable property belonging to him or by deception or coercion, is punished."

In English legal doctrine, theft is accordingly regarded as a universal offense for all property crimes. Another generally recognized classification of these offenses does not exist. A distinction is made, if at all, according to whether the impairment of the property occurred through displacement or through damage to third-party property. In its Eight Report , the Criminal Law Revision Committee subscribes theft and related offenses under the heading Theft and related offenses. The theft thus plays a key role.

The main advantage of this broad basic fact is the high flexibility, which allows the courts more or less free discretion and makes dogmatic, subtle distinctions superfluous:

“We differentiate between theft, embezzlement, robbery, fraud and extortion with a sharpness as if they were completely separate, strange phenomena in life. In fact, all of this often flows into one another and the differentiation appears meaningless for a realistic assessment of the attack. "

- Adolf Wach

This wide scope of judicial decision-making, which is typical for common law , is rejected in states with a different judicial and constitutional tradition, but for reasons of lack of legal certainty . The problem of fair labeling is brought forward as a further criticism : The different designations also express the different weighting of the anti-right sentiments.

Romanic legal system

The property offenses are regulated in French criminal law in the third book of the Code pénal . The central criminal offense is theft according to Art. 311-1 Code pénal; In French law, too, theft is a further and more important offense compared to fraud, since the offense of fraud consistently only records positive acts of deception in order to reject spurious omissions in France.

German legal circle

For Germanic law and German law of the Middle Ages, theft is the most important property offense. As in many primitive legal systems, a distinction is made between whether the theft is clandestinely or as a robbery. H. openly, was committed. A prerequisite for the offense of both theft and robbery was the breach of custody (in Germanic law: the "Gewere"). On the other hand, an abstract offense of fraud was unknown. Up until the Middle Ages, forgeries and deceptions were penalized , especially in the area of ​​counterfeiting of coins, measurements and documents , without always aiming at financial loss . In addition, the cheated person was mainly dependent on civil law .

The reception of Roman law led to the development of a wide variety of theft offenses, as Articles 157 to 175 of the Constitutio Criminalis Carolina show. The continued effect of Frankish law is shown in the distinction between small (less than five guilders ) and large theft, similar to grand larceny and petit larceny in common law. The outdated expression defraudation from Latin is synonymous with fraud and embezzlement . Defraudants are called in the novels Love Your Neighbor by Erich Maria Remarque and The Golem by Gustav Meyrink . The time referred Kenneth Lay as "Großdefraudant [s] of Enron." In German law, fraud is defined for the first time at a relevant point in the Prussian General Land Law , but without providing for a penalty:

"Any cause of an error, as a result of which someone is to be injured in his rights, is a punishable fraud."

- Prussian General Land Law (1794), § 1256 Paragraph 2

From a legal point of view, deceptions are still only discussed in the context of fraud offenses. In the Bavarian Criminal Code of 1813, too, fraud only relates to deception - including defamation - without any reference to property. The view that the fraud should be limited to the violation of property only gained support in the course of the 19th century. It was argued that fraud, interpreted as a truthful offense, unnecessarily blurred the boundaries between law and morality. The escroquerie according to Art. 405 of the French Code pénal of 1810 was central to the presentation . The Prussian Penal Code of 1851 established the following criminal offense as an example for the following codifications:

"Anyone who, with the intent to gain profit, damages the property of another by provoking an error by presenting false facts or by distorting or suppressing true facts, is committing fraud."

- Prussian Criminal Code (1851), § 241

Today's German law systematically follows the separation theory and differentiates between property crimes in the narrower sense and property crimes. Property crimes are classified in the 19th, 20th and 27th sections of the German Criminal Code . The main protected property of these offenses - property - is not defined; Various concepts of property are represented in legal theory. They differ in their accessibility to civil law (formal concept of property) or in their connection to an economic-factual approach. The central offense of property offenses is theft according to § 242 StGB. German law distinguishes embezzlement from this under Section 246 of the Criminal Code. This differentiation is comparatively more recent and was still unknown in Roman law ; it goes back to Feuerbach's Bavarian penal code of 1824. In contrast, property offenses do not tie in with a civil law position: property is understood as an originally criminal law term.

literature

Comparative law

  • Caroline Brazel: The theft according to section 1 (1) of the Theft Act 1968 in a legal comparison with Section 242 (1) StGB . Dr. Kovač, Hamburg 2012, C. Comparative Law.
  • Frank Och: The criminal law protection against unjustified shifting of assets in England and Wales in comparison with the German criminal law . Lang, Frankfurt am Main 2004.
  • Adolf Wach : Legislative technology . In: Karl von Birkmeyer u. a. (Ed.): Comparative presentation of German and foreign criminal law. General part . tape IV . Otto Liebmann, Berlin 1908.

criminology

  • Fiona Brookman (Ed.): Handbook on crime . Willan Publishing, 2010, ISBN 978-1-84392-372-5 , Part I: 'Conventional' property crime, Part II: Fraud and Fakes.

Individual evidence

  1. ↑ a b c Urs Kindhäuser : StGB § 242 theft . In: Kindhäuser, Neumann, Paeffgen (ed.): Criminal Code . 3. Edition. CH Beck, Munich 2010, Rn. 1.
  2. ↑ a b c Urs Kindhäuser : StGB § 263 Fraud . In: Kindhäuser, Neumann, Paeffgen (ed.): Criminal Code . 3. Edition. CH Beck, Munich 2010, Rn. 1-8.
  3. ^ A b Adolf Wach : Legislative technology . In: Karl von Birkmeyer u. a. (Ed.): Comparative presentation of German and foreign criminal law. General part . tape IV . Otto Liebmann, Berlin 1908, p. 69 .
  4. ↑ a b Caroline Brazel: The theft according to section 1 (1) of the Theft Act 1968 in a legal comparison with Section 242 (1) StGB . Dr. Kovač, Hamburg 2012, p. 201-203 .
  5. ↑ Caroline Brazel: The theft according to section 1 (1) of the Theft Act 1968 in a legal comparison with Section 242 (1) StGB . Dr. Kovač, Hamburg 2012, p. 203-207 .
  6. ^ Ulrich Huebner , Vlad Constantinesco: Introduction to French law . 4th edition. CH Beck, Munich 2001, p. 139-141 .
  7. ↑ See Wolfgang Bittner: The concept of detention and its meaning for the systematics of property offenses . Südwestdeutscher Verlag für Hochschulschriften, Saarbrücken 2008, ISBN 978-3-8381-0051-7 .
  8. ↑ Defraudation . In: Mayer's large pocket dictionary in 24 volumes . Volume 4. BI Taschenbuchverlag, ISBN 3-411-11007-4 (complete works) or ISBN 3-411-11047-3 (Volume 4)
  9. ↑ Michael Naumann : Economic Crisis in the USA - We were once rich and beautiful . In: Die Zeit , No. 4/2009
  10. ↑ Caroline Brazel: The theft according to section 1 (1) of the Theft Act 1968 in a legal comparison with Section 242 (1) StGB . Dr. Kovač, Hamburg 2012, p. 195-201 .