Purpose of appropriation

Intent to appropriation is a legal technical term that describes the intention of a person to at least temporarily appropriate something with the simultaneous intention of permanently expropriating the person entitled to the thing (see theft , embezzlement ). The perpetrator deals with a strange thing as if it belonged to him, thus presuming the position of the owner. The Latin phrase Se ut dominum gerere describes the fact that he “behaves like the master of the matter” .

The concept of appropriation is generally divided into two components, both of which must be fulfilled in order to affirm the subjective factuality :

Acquisition component (positive component)

Appropriation means incorporation into the perpetrator's assets or into the assets of a third party.

First degree dolus directus is required as an attachment form for the acquisition component . The perpetrator must be concerned with appropriating the matter to himself or to a third party.

It is sufficient if the intention of appropriation is aimed at only temporary incorporation of the thing.

Note: In the appropriation component, there is a distinction between theft and robbery, on the one hand, and property damage or unpunished removal of property:

The appropriation component is absent when the perpetrator takes something away just to destroy it, throw it away, or put it aside. This applies regardless of whether the perpetrator wants to destroy the thing on the spot or whether he takes it with him to destroy it in a safe place (without wishing to temporarily absorb it) or to throw it away.

Exception: The intended destruction of an item can, in exceptional cases, justify the appropriation component if the perpetrator wants to achieve the economic value of the item through the destruction (cases of consumption such as the consumption of other people's food).

Expropriation component (negative component)

Expropriation means the displacement of the person entitled from his economic or material position in the matter.
The intent form is sufficient for the expropriation component dolus eventualis (the perpetrator must seriously expect and accept the fact that the person entitled will be expropriated).
It is necessary that the will for expropriation is aimed at a permanent displacement of the entitled person from his economic or material position.

Note:

In the expropriation component, there is a distinction between theft and robbery on the one hand and presumption of use on the other hand, which is only punishable in the cases of §§ 248b, 290 StGB. The expropriation component is absent if the perpetrator acts with a willingness to return.

A regular distinction is made between the expropriation of the thing itself and the expropriation of an intrinsic material value (lucrum ex re).

Two different theories are used here to determine whether there is an expropriation: on the one hand, the substance theory and, on the other hand, the material value theory .

Note the willingness to return

Particularly problematic are cases in which the perpetrator acts with a will to return the item that has been taken away. This does not automatically exclude the intention of expropriation:

1. There is only a will to repatriate the expropriation component if the person entitled is to receive the item back within a reasonable period of time (from the point of view of the victim, the loss should not be final) and without any significant depreciation.

Example: "Crashkid" takes a car to cause accidents.

2. A will to repatriate, understood as the will to restore the person entitled to his economic position in the matter, presupposes that the person entitled is to receive the thing back as the person entitled. The repatriation must therefore be carried out with recognition and not with denial of the property of others.

Example: T would like to sell the thing to the entitled person the next day.

3. The will to repatriate is absent if the person entitled is to receive back the material substance, but not the material value directly embodied in the thing itself (so-called lucrum ex re).

Example: T takes O's passbook, withdraws the money and gives O the passbook back.

4. Since dolus eventualis is sufficient for the expropriation component, the will to repatriate is already lacking if the perpetrator seriously expects it and accepts that the person entitled will not get the thing back.

E.g .: T leaves O's car in the forest after using it.

5. Only the presentation of the perpetrator at the time of the removal is decisive for the existence of the intent to acquire possession and thus also for the question of the willingness to return.

Illegality of the intended appropriation

The intended appropriation must be illegal. This means that it must run counter to the material property order. In this context, it is often defined that the illegality of the appropriation does not apply if the perpetrator has a right to the surrender or transfer of ownership of the thing that has been taken away. However, this definition is not sufficient because the general justification reasons (e.g. state of emergency ) come into consideration to justify the (sought) appropriation . In addition, it must then be checked whether the perpetrator was entitled to a due, unenforceable species claim (!) To the matter. In the case of generic debts, the illegality of the aspired appropriation does not apply, just as in the case of species claims subject to objection. The treatment of monetary debts in this context is controversial: While numerous authors insist on the property as a generic debt, others see the "amount of value" as decisive in view of the arbitrary interchangeability of coins and thus deny the illegality of the attempted appropriation of money. However, in the majority of such cases the first-mentioned view leads to impunity for the offender. As a layperson, the layperson usually cannot know that he is not allowed to appropriate the amount of money to which he is entitled under civil law, which is why he is subject to a factual error and thus his intent with regard to illegality no longer applies .

Willfulness regarding the illegality of the desired appropriation

After all, it is not sufficient if the intended appropriation is merely objectively unlawful. Rather, the perpetrator must also show intent (contingent intent is sufficient) in this regard.

Illegality and guilt

Finally - as with any offense - (general) illegality and guilt are a prerequisite. Under "illegality", a possible justification for the removal must then be checked, which should not be confused with the possible legality of the desired appropriation (which is to be located in the subjective factual situation).

Individual evidence

↑ Kudlich, Hans: Cases on criminal law, general part, 3rd edition, Munich 2018, p. 90.
↑ Joachim Vogel: Leipzig Commentary on the Criminal Code. Vol. 8: §§ 242 to 262 . Ed .: Heinrich Wilhelm Laufhütte, Joachim Vogel. De Gruyter, Berlin 2010, ISBN 978-3-89949-785-4 , p. 115 ff . (RN 153 ff). ( limited preview in Google Book search)

[1] Kudlich, Hans: Cases on criminal law, general part, 3rd edition, Munich 2018, p. 90.

[2] Joachim Vogel: Leipzig Commentary on the Criminal Code. Vol. 8: §§ 242 to 262 . Ed .: Heinrich Wilhelm Laufhütte, Joachim Vogel. De Gruyter, Berlin 2010, ISBN 978-3-89949-785-4 , p. 115 ff . (RN 153 ff). ( limited preview in Google Book search)