White-collar crime

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White-collar crime is the term used for criminal offenses with economic implications. The criminal acts can be directed against private individuals , other companies or the state .

In the middle of the 20th century, Donald R. Cressey investigated the causes of white-collar crime . In doing so, he developed one of the most well-known explanations of the causes of fraudulent acts , the Fraud Triangle . The approach presented by Cressey is also known as the strategic triangle , Doloses triangle , fraud triangle or crime risk model and is based on surveys of convicted white collar criminals .

The economic development as a result of globalization since the turn of the 20th to the 21st century, digital technologies and the pushing back of legally binding documentation and formal requirements have led to a new dimension of white-collar crime. In the literature, these offenses are on the one hand still referred to as white collar crime (for the term white collar see Blue Collar ), on the other hand, new terms such as financial fraud can also be identified. The often transnational facts of the offenses pose major problems for the prosecuting authorities due to the many possibilities of concealment.

In current economic growth models, white- collar crime is seen as one of the long-term and sustainable factors that negatively affect the state community and economic growth. On a global level, the fight against white-collar crime such as corruption , money laundering , tax evasion and the creation of opportunities for their detection combined with legal certainty (e.g. through contractual and register security , formal requirements , independent and effective courts or administration) are key to Innovation, productivity and prosperity.

Typical offenses (selection)

(In some cases, the linked articles specifically describe German law.)

Unauthorized speculation such as the Nick Leeson and Jérôme Kerviel cases are also part of white-collar crime.

Through competitive spying, companies are investigated by other companies by violating trade and business secrets. This can be done by individuals or organized groups. If the other company is a foreign state-owned company or if a foreign state tolerates or promotes spying on the company concerned, this is referred to as industrial espionage .

In addition to the aforementioned offenses, the associated concealment of assets must be mentioned. There is also an internationally secretive wealth management and consulting industry. These companies and offshore providers do not primarily serve the purpose of legal tax optimization or economic management, but rather to circumvent regulations, a large number of criminal activities or illegal harvesting of income. The members of this international financial advisory industry create their own legal system by using tax havens and exploiting all possible loopholes, and they also engage in massive lobbying work to open up new loopholes and to abolish criminal offenses and formal requirements .

On economic crime in Germany

German law

Since there is no legal definition of white-collar crime in Germany , the Federal Criminal Police Office (BKA) uses the catalog of Section 74c, Paragraph 1, No. 1 to 6b of the Courts Constitution Act when classifying criminal offenses as white-collar crime .

Relevant German criminal provisions are u. a. contained in the Tax Code , the Criminal Code (in part), the Commercial Code , the Act against Unfair Competition , the Copyright Act , the Money Laundering Act and the Securities Trading Act .

Case numbers

According to the Federal Economic Crime Situation Report 2017 of the Federal Criminal Police Office (BKA), the police crime statistics (PKS) recorded 74,070 white-collar crimes; that was over 28% more than in 2016. The number of cases was thus well above the average for the last five years. The average over the past five years is 65,484 cases. An extensive complex of proceedings from Saxony, in which a few suspects committed numerous investment fraud offenses, has a significant impact on the statistics due to the large number of cleared up cases. The proportion of white-collar crime cases was only 1.3% (2016: 0.9%) of the total number of crimes.

In contrast to the BKA, PricewaterhouseCoopers differentiates between analog white-collar crime and cybercrime in its 2017 study on white-collar crime in Germany. According to their investigations, there was a rapid increase in the number of cybercrime cases in contrast to the declining trend in analogue white-collar crime. The proportion of analog white-collar crime fell from 51% to 45% in 2015 and 2017, and cybercrime increased from 34 to 46%. The gap between analog (49%) and digital crime (46%) has largely disappeared. However, on average, analog forms of white-collar crime continued to cause significantly higher damage than cybercrime. The companies concerned put the average costs as a result of a serious economic crime at 7.23 million euros, while cases of cybercrime caused losses of 183,000 euros on average.

It should be taken into account that from the beginning of July to the end of September 2017 in Germany, PricewaterhouseCoopers used a standardized questionnaire to telephone those responsible from 500 companies who had declared themselves responsible for the topic of crime prevention and investigation in their company. In addition, in-depth interviews on selected questions were carried out with 32 companies in order to obtain more detailed reports and assessments. According to PwC, whistleblower systems to combat white-collar crime are increasingly normal. The usefulness of whistleblower systems for the detection of compliance violations is hardly doubted anymore. 86 percent of the companies have now implemented such a system.

The KPMG comes in their study in 2018 concluded that about one in three companies affected by economic crime. Around two out of three respondents have a whistleblower system, which is a powerful weapon against white-collar crime. Two out of three respondents (66 percent) now have a whistleblower system for reporting suspected cases; for financial service providers it is even 95 percent. It includes mailboxes or mailboxes (57 percent) or your own e-mail address (54 percent) for reporting suspected cases. Smaller companies in particular, however, apparently have major problems with implementation: every second of them (49 percent) complains about an inadequate reporting culture. KPMG carried out the study as part of a telephone survey of 702 companies across all industries.

Damage

According to the BKA's picture of the situation, the damage caused by the economic crimes recorded in the police crime statistics amounted to 3.738 billion euros in 2017. That is over 50.5 percent of the total damage caused by crime in the German police crime statistics. This means that the damage amount is more than 6% higher than in 2016 (2.970 billion euros). Individual damages are not shown.

According to PricewaterhouseCoopers, the financial consequences can only be quantified to a limited extent, as indirect consequences such as B. liability risks, legal disputes and reputational damage must be taken into account. In 2018, the average damage per company was 723,000 euros. Larger companies reported significantly higher losses. In the PwC study, 212 companies surveyed estimated average costs of 7.23 million euros due to serious economic crimes.

Problems with BKA statistics and company figures

According to the former President of the Federal Criminal Police Office, Ziercke, “the police data [...] only reflect the actual extent of white-collar crime to a limited extent. First and foremost, it is the interests of the victims that mean that only some of the economic crimes committed are reported to the law enforcement authorities . Affected companies fear loss of image and reputation. Internal damage limitation often still comes first. "

In addition, the police crime statistics, the basis of the BKA situation reports, only contain the cases reported to the police. The economic crimes reported directly to the public prosecutor's office are not recorded in the PKS, as there is no obligation to report them.

In addition, neither the undiscovered nor the unreported offenses, the so-called dark field, can be included in the damage figures, so that the actual number of cases is likely to be far greater than the figures given in the BKA's bright field.

The BKA points out that “the damage sums recorded in the PKS can only partially reflect the total damage actually caused by white-collar crime”, since “in addition to the damage that can be presented in monetary terms, the immaterial damage caused by criminal activity must also be considered” and also that “these damages can hardly be quantified statistically and the estimates in this regard differ greatly from one another” and therefore “a reliable statement on this is not possible”. "However, it is undisputed that it is precisely the non-quantifiable immaterial damage that is essential for assessing the damage potential of white-collar crime."

The problematic nature of the projections with regard to the number of cases and damage to companies by including the suspected cases has already been discussed. With regard to the damage, there is another abnormality: Section 2.2 speaks of damage that companies have suffered as a result of white-collar crime. None of the studies listed mention the potential benefits that companies can derive from their own white-collar crime. This is not surprising when you know that these investigations published by auditing and management consultancies mainly serve the purpose of obtaining new orders for detection, other special or final audits, in order to set up compliance departments, to examine the internal control system, Carry out risk analyzes, carry out anti-corruption training in-house and whatever similar financially attractive work is.

For this reason, such marketing-oriented studies by PwC, KPMG, but also by Ernst & Young, Deloitte, Mummert, Euler Hermes etc. should be viewed with caution, particularly with regard to any extrapolation of the number of cases or the damage. Nevertheless, some figures were used in the article because the BKA does not make any extrapolations for white-collar crime (as well as for corruption) and therefore there are no other points of reference for assessing the damage potential of white-collar crime.

Combating economic crime

Whistleblowers can submit their knowledge of white-collar crime cases to law enforcement authorities as a criminal complaint . This can also be done anonymously, as according to the principle of legality, the police also have to investigate anonymous reports. With an anonymous report, knowledge carriers can protect themselves from the possible consequences of their report.

On white-collar crime in the USA

In December 2008, Bernard L. Madoff was arrested by the FBI as part of an investigation into the largest fraud case to date since Enron went bankrupt in 2001 . Overall, the pyramid scheme, which has been in place for decades, was around 50 billion US dollars, around 38 billion euros (as of January 2009). The SEC was accused of ignoring indications of irregularities for years. On December 16, 2008, the SEC admitted omissions in an official statement.

On economic crime in Austria

Case numbers

In the area of ​​economic, fraud and document offenses, a decrease of 9.8 percent to 49,620 reports was recorded in 2014. In 2013, 55,023 cases were reported. € Most of the reports of white-collar crime - 73.6 percent - fall on fraud, the suppression of documents and the alienation of cashless means of payment. A decrease of over 11.1 percent can be ascertained for these offenses alone. Only in the area of ​​forgery of documents has the number of cases increased by 9.6 percent, with the forgery of particularly protected documents such as passports, ID cards and driver's licenses increasing by 19 percent. The forged or falsified document is not only used in the area of ​​illegal migration, but is also often the “entry ticket”, especially for fraud such as credit and cell phone fraud or money laundering. In order to take such documents out of circulation as early as possible, cooperation with the banking industry and telecommunications companies was intensified. In addition, the employees of the registration authorities were trained. The classic economic crimes, such as breach of trust, fraudulent or negligent crime and social fraud, as well as other crimes described in sections 153 to 163 of the Criminal Code, make up only 2.2 percent of the total economic crime. However, the damage runs into the billions. The clearance rate for these offenses rose by 0.8 percentage points to 97.2 percent in 2014.

Possible measures against economic crime

Companies can counter white-collar crime in three phases.

Prevention

Through training courses, possible threat scenarios and approaches to them can be identified and trained. Possible strategies are specified by setting up a company's own CI. Codes of ethics convey a basic understanding of honesty and transparency that employees can refer to.

Measures to comply with rules (legal compliance) are also summarized under the legal term compliance .

However, all of these measures are of no use if companies do not select their employees correctly. 14% of all economic offenders have already acted suspiciously in a previous company (KPMG study). According to a study by Vahlenkamp and Knauß (1995), white-collar crime and corrupt behavior are mainly attributed to the character traits of the perpetrators.

The penal code, which applies to most economic crimes, provides for high levels of penalties for economic crimes, but the deterrent effect should only be limited. The misappropriation of goods with a value of more than 5,000 euros can be punished with imprisonment of up to three years, misappropriation of goods with a value of over 300,000 euros even with up to ten years.

Detection and reconnaissance

When prevention has failed, it is important to recognize a crime and act correctly. The right action can have a preventive effect on others and prevent consequential damage. In-house there is the option of installing an auditing system that monitors databases and reports abnormalities. Analytical checking software that compares data and checks invoices and receipts for correctness is helpful for this. Software can do this to an extent that a large testing department cannot.

In this regard, however, data protection and personal rights of employees must be observed.

At the statutory level, the Federal Office for the Prevention and Fight against Corruption was set up in Austria in 2009 . This federal office is responsible for corruption in the public service. On the private side, the Central Public Prosecutor's Office for the Prosecution of Economic Criminal Matters and Corruption (WKStA) is responsible. This emerged in 2011 from the Corruption Prosecutor's Office. This created an authority that combines the necessary competence and expertise for efficient prosecution of large economic and corruption offenses.

Response to offenses

Criminal offenses that are discovered internally in companies must be reported, otherwise the management makes itself a criminal offender.

Offenses that are committed in companies that are not criminally relevant, but which violate their own CI or the code of ethics, must be sanctioned internally in order to generate preventive effects.

According to a study by KPMG in 2014, Western European companies spend far less on prevention than North American companies. One of the reasons for neglecting action is underestimating the risk of being involved in white-collar crime. According to a study by PwC in 2014, 37 percent of the companies surveyed are affected by white-collar crime.

See also

literature

  • Caracas: Responsibility in international corporate structures according to Section 130 OWiG - Using the example of bribery in business transactions with no punishments abroad, Nomos Verlag, Baden-Baden 2014, ISBN 978-3-8487-0992-2 , the same . Corporate Compliance Zeitschrift 2015, p. 167 ff. And p. 218 ff.
  • Kurt Eichenwald: conspiracy of fools. The Enron scandal. A true story. Goldmann, Munich 2007, ISBN 978-3-442-15455-5 .
  • Daniel Fischer : New Ecocrime and New Economy. In: Hans Felix R. Ehrat, Eric Stupp (Ed.): Management & Law. Helbing and Lichtenhahn et al., Basel et al. 2003, ISBN 3-7190-2013-4 , p. 361ff. ( Management milestones 10).
  • Ramond Fisman, Edward Miguel: "Economic Gangsters". Corruption and Crime in the World Economy. Translated from the English by Thomas Atzert. Campus Verlag, Frankfurt am Main et al. 2009, ISBN 978-3-593-38973-8 .
  • Günter Janke: Compendium of white-collar crime. Peter Lang, Frankfurt am Main et al. 2008, ISBN 978-3-631-57020-3 .
  • Leo Müller : crime scene Zurich. Insights into the shadowy world of international financial crime. Econ, Berlin 2006, ISBN 3-430-16908-9 .
  • John Perkins : Confessions of an Economic Hit Man . Out and about in the service of the business mafia. Riemann, Munich 2005, ISBN 3-570-50066-7 .
  • Butz Peters : The creamer . Organized crime in the Federal Republic. 1st ed., Rowohlt , 1990, ISBN 3-498 05273 X .
  • Werner Rügemer : Grüezi! What crimes can we assist with? Switzerland as the logistic center of international white-collar crime. Essays, analyzes and materials. Distel-Verlag, Heilbronn 1999, ISBN 3-929348-27-6 .
  • Diana Ziegleder: White collar crime in business life. An empirical study of formal and informal action strategies of companies using Germany as an example. Nomos-Verlags-Gesellschaft, Baden-Baden 2010, ISBN 978-3-8329-5278-5 ( Nomos Universitätsschriften. Soziologie 12), (Also: Halle-Wittenberg, Univ., Diss., 2009).

Web links

Individual evidence

  1. ↑ Alexander Schuchter: Perspectives of convicted economic criminals: reasons for their actions and prevention in companies. P. 64.
  2. ↑ see Philip Faigle: We are disrupting the rule of law. In: The time . April 18, 2016.
  3. ↑ Cf. Marcus Theurer: Corruption as bad as terrorism. In: Frankfurter Allgemeine Zeitung. May 12, 2016.
  4. ↑ See, inter alia, William Easterly (2005): National policies and economic growth: A reappraisal. In: Philippe Aghion, Steven Durlauf (Eds.): Handbook of Economic Growth. Elsevier, chap. 15; Jürgen Stark: On the importance of institutions in economic and financial development in public Inaugural lecture at the Eberhard Karls University in Tübingen on June 1, 2005; Sebastian Buckup: Economic Growth: A Key to More Productivity. In: The time. 20th August 2015.
  5. ↑ BKA: Explanation of terms ( memento of the original from January 31, 2012 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. @1@ 2Template: Webachiv / IABot / www.bundeskriminalamt.de
  6. ^ Bastian Obermayer, Frederik Obermaier: Panama Papers. KiWi-Paperback, ISBN 978-3-462-05002-8 , p. 308 ff.
  7. ↑ BKA: Wirtschaftskriminalität Bundeslagebild 2011 (press-free short version, February 2013), p. 6: in the following situation report 2011.
  8. ↑ Federal Criminal Police Office: Economic Crime 2017. Federal Criminal Police Office, accessed on February 28, 2019 .
  9. ↑ Prof. Dr. jur. Kai-D. Bussmann, Claudia Nestler, Steffen Salvenmoser: White-collar crime 2018. (PDF) PricewaterhouseCoopers GmbH White-collar crime and Martin Luther University Halle-Wittenberg, January 28, 2019, accessed on February 9, 2019 .
  10. ↑ Alexander Geschonneck, Barbara Scheben, Jan-Hendrick Gnändiger: White-collar crime in Germany 2018. KPMG AG Wirtschaftsprüfungsgesellschaft, 2018, accessed on January 28, 2019 .
  11. ↑ Economic crime 2018, p. 21. (PDF) PricewaterhouseCoopers, 2018, accessed on January 28, 2019 .
  12. ^ According to Ziercke according to a BKA press release from September 7, 2011.
  13. ↑ Situation report 2010. P. 11.
  14. ^ SEC Charges Bernard L. Madoff for Multi-Billion Dollar Ponzi Scheme, SEC press release
  15. ↑ Madoff also defrauded European banks. The gigantic case of fraud of 50 billion US dollars is spreading as far as Europe. Meanwhile, the SEC comes under fire because the fraudster remained undisturbed for years, FAZ, December 16, 2008, p. 21.
  16. ^ SEC: Statement Regarding Madoff Investigation.
  17. ↑ Safety report 2014. (PDF) BMI Austria, accessed on June 19, 2016 .
  18. ↑ a b c White-collar crime in Germany 2014. (PDF) KPMG, accessed on June 19, 2016 .
  19. ^ I. Pies, P. Sass, H. Meyer: Prevention of white-collar crime . Ed .: Chair for Business Ethics at the Martin Luther University Halle-Wittenberg. Halle (Saale), ISBN 3-86010-805-0 .
  20. ↑ PwC Global Study on White Collar Crime. Retrieved June 19, 2016 .