Removal
In German criminal law, removal refers to the removal of third parties and the establishment of new, not necessarily the perpetrator's own, custody of a thing by breaking it. Removal is a feature of the offenses of theft ( § 242 StGB ), robbery ( § 249 StGB) and lien ( § 289 StGB). The removal consists of three elements, namely the removal of custody, the establishment of new custody and the break.
Detention
First of all, the thing must be in someone else's custody. Custody is the actual physical rule based on the will to rule with the possibility of being able to access the matter at any time. Removal of custody and thus removal is ruled out if the matter is custody or is already in the perpetrator's custody . Custody and (civil) possession are not to be equated, in particular this applies to the figure of the indirect owner and the fictional possession within the meaning of § 857 BGB . Both of these do not exist in criminal law.
New establishment of custody
New custody is justified, if the offender without significant disability has gained about the matter through the old bailee the rule and the old bailee no longer about the matter have , can eliminate without the power to dispose of the offender.
- Example: If the perpetrator stows a pack of cigarettes in the inside pocket of his coat in the supermarket, a change of custody takes place because the original person in custody - the owner of the supermarket - can no longer dispose of the matter without breaking the perpetrator's power of disposal. Something else applies as long as the box is still in the perpetrator's shopping cart or is visibly inserted into a bag that has been brought along and transported.
fracture
A breach of custody presupposes that the change of custody takes place against or without the will of the original custodian. If, for example, a book is handed over on loan , a change of custody usually takes place, but this takes place with the consent of the lender, so that it cannot be a matter of removal. The mere observation by the shopkeeper or the department store detective does not change anything in the conflicting will of the original custodian.
The characteristic of the “breach” also represents the decisive dividing line between theft and the offense of fraud ( Section 263 StGB), as this is characterized by voluntary (property) surrender, while involuntary is what matters in the case of theft.
See also
literature
- Wolfgang Bittner : The concept of custody and its meaning for the systematics of property offenses , Südwestdeutscher Verlag für Hochschulschriften, Saarbrücken 2008, ISBN 978-3-8381-0051-7
Individual evidence
- ↑ BGH , decision of December 8th , 2016 - 5 StR 512/16 , Openjur 2018, 1929.
