Insurance fraud

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Insurance fraud is a criminal offense under German law, which is prohibited by Section 265 of the Criminal Code and is punishable by punishment .

In contrast to insurance fraud under § 265 of the Criminal Code aF (of the law only in the rule Example of § 263 para. 3 No. 5 of the Criminal Code. Occurs), the insurance fraud already the preparation of action for fraud under penalty (so-called run-up offense ). This considerable expansion made it necessary to reduce the range of penalties accordingly.

Protected legal interest

The protected legal interest is controversial: the assets of the insurance company and / or the social performance of the general interest insurance system are named as protected interests .

Offense

The ownership of the thing, which can be immovable as well as movable, is irrelevant for the realization of the facts . In fact, there must be an insurance contract for the thing in question, but it is not necessary whether the insurance pays out or not. The acts are finally named in the facts .

On the subjective side, in addition to intent , the intention is also required to obtain the benefits from the insurance for yourself or a third party. The illegality of this desired advantage, i.e. the insurance benefit, is not necessary.

No active repentance

Although it is a preliminary offense (see above), no exemption from punishment through active repentance is provided after completion .

Trial offense

Since the legislature has designed the offense of violation of rights far in front, it remains unclear why additionally one referred to in paragraph 2 trial criminality was introduced.

For example, anyone who incorrectly assumes that the thing is insured is involved in attempted insurance fraud.

Competing with other offenses

With regard to the offense, there may be unity with the relevant offenses (e.g. damage to property according to Section 303 of the Criminal Code). If fraud occurs as a result of insurance fraud, the punishment for insurance fraud on the basis of the express provision in the law (paragraph 1, last half-sentence) takes second place to that for fraud by way of subsidiarity . According to the meaning of the provision, the term “act” is to be interpreted broadly in favor of the perpetrator.

Individual evidence

  1. ↑ Thomas Fischer : Tröndle / Fischer, Criminal Code and Additional Laws , 54th edition, CH Beck Munich 2007, ISBN 978-3-406-55477-3 , § 265 marginal number. 1: "in advance of fraudulent activities" with reference to BT-Drs. 13/8991, 21; BT-Drs. 13/9064, 19 f .; "The provision has [...] been inserted in place of § 265 old version (the content of which [...] has been partially adopted in § 265 No. 5 [...])"
  2. ↑ Thomas Fischer : Tröndle / Fischer, Criminal Code and Additional Laws , 54th edition, CH Beck Munich 2007, ISBN 978-3-406-55477-3 , § 265 marginal number. 16 with reference to BT-Drs. 13/8587, 65; BT-Drs. 13/9064, 19
  3. ↑ Thomas Fischer : Tröndle / Fischer, Criminal Code and Additional Laws , 54th edition, CH Beck Munich 2007, ISBN 978-3-406-55477-3 , § 265 marginal number. 2 (Fischer himself considers only the assets of the insurance company to be the protected legal interest and writes that the H.M. assumes that "in addition to this, at least a common good of the functionality of the insurance industry" [emphasis omitted] is protected)
  4. ↑ Kristian Kühl : Lackner / Kühl, Criminal Code, Commentary, 25th edition, CH Beck Munich 2004, ISBN 3-406-52295-5 , § 265 Rn. 1: "A legal interest that is at least equally protected is, in addition to the assets, the social performance of the general benefit [...] insurance system [...]" (emphasis omitted)
  5. ↑ Thomas Fischer : Tröndle / Fischer, Criminal Code and Additional Laws , 54th edition, CH Beck Munich 2007, ISBN 978-3-406-55477-3 , § 265 marginal number. 10
  6. ↑ Thomas Fischer : Tröndle / Fischer, Criminal Code and Additional Laws , 54th edition, CH Beck Munich 2007, ISBN 978-3-406-55477-3 , § 265 marginal number. 14 with criticism of the legislature
  7. ↑ Thomas Fischer : Tröndle / Fischer, Criminal Code and Additional Laws , 54th edition, CH Beck Munich 2007, ISBN 978-3-406-55477-3 , § 265 marginal number. 13: "[...] in individual cases disproportionate forward shift [...]"
  8. ↑ a b Kristian Kühl : Lackner / Kühl, Criminal Code, Commentary, 25th edition, CH Beck Munich 2004, ISBN 3-406-52295-5 , § 265 Rn. 6th
  9. ↑ Thomas Fischer : Tröndle / Fischer, Criminal Code and Additional Laws , 54th edition, CH Beck Munich 2007, ISBN 978-3-406-55477-3 , § 265 marginal number. 17 with reference to BGHSt  45, 211, 215