Fraud (§ 263 StGB) and embezzlement (§ 266 StGB) as well as other property crimes
In addition to theft (§ 242 StGB) and embezzlement (§ 246 StGB), fraud (§ 263 StGB) and breach of trust (§ 266 StGB) are of particular importance in practice.
Investigation proceedings on allegations of fraud are in many cases (especially in the economic or entrepreneurial field) already complicated and extensive from the facts of the case, but also from the legal position. Because an accusation of fraud can be made relatively easily by the police and the public prosecutor's office, especially at the beginning of the proceedings, a comprehensive defense by a lawyer is often without alternative and often includes detailed written submissions. The dogmatics of fraud is extensive, there are countless (sometimes contradictory) judgments on fraud. A defense attorney must have a detailed command of the case law on the elements of fraud, prosecution experience in white-collar criminal proceedings and, in addition, be able to quickly grasp the economic (and often technical) situation. As specialized lawyers in white-collar criminal law, we are at the disposal of accused persons, companies and victims of fraud in cases of fraud allegations.
Fraud (§ 263 StGB), subsidy fraud (§ 264 StGB) and further offences
Criminal defense attorneys are involved almost daily in preliminary proceedings on suspicion of fraud or subsidy fraud; the practical relevance of the various types of fraud is enormous.
In practice, the case scenarios in business or in the private sector are almost unmanageable, for example, allegations of fraud
- in connection with the employment relationship (e.g., working time fraud, falsified references in the application, bonuses obtained by fraud, other damage to the employer, etc.
- in health care ("billing fraud in health care") for example by hospitals, doctors or nursing services,
- in the application and use of subsidies and grants,
- in capital investments ("capital investment fraud"), § 264a StGB
- in the context of court cases or proceedings (so-called "litigation fraud"),
- in construction projects,
- in the case of insurance fraud,
- on purchase orders, deliveries and acceptances, partly in the case of poor performance/incomplete consideration, pricing, etc.
- in the assertion of claims, requests for payment, credit card abuse, etc.
- in the context of business relationships of any kind,
- in obtaining credit ("credit fraud"), § 265b StGB
- in making applications of any kind
- in company acquisitions, due diligences and share deals,
- in the use of forged (sometimes backdated) documents,
- in sports betting (betting fraud)
- in social benefit fraud
- in computer fraud, etc.
§ Section 263 (1) StGB reads as follows:
"Whoever, with the intention of obtaining an unlawful pecuniary advantage for himself or a third party, damages the property of another by creating or maintaining a mistake by false pretenses or by distorting or suppressing true facts, shall be punished with imprisonment for not more than five years or a fine."
If all conditions should actually be present, § 263 para. 1 StGB provides as sanction imprisonment up to 5 years or fine, in particularly serious cases (which occur daily in business life) at least 6 months up to 10 years imprisonment.
Infidelity (§ 266 StGB)
Disloyalty (§ 266 StGB) plays a major role especially in business life. The protected legal asset is the individual property of the so-called trustor.
Our focus as specialist lawyers for criminal law is on white-collar criminal law. One of the most important areas of white-collar criminal law concerns accusations of breach of trust pursuant to § 266 StGB (German Criminal Code). The advice and representation of injured companies, but also the defense of defendants on suspicion of embezzlement is daily working practice of our attorneys.
Numerous occasions for criminal proceedings for embezzlement.
The offense of embezzlement according to § 266 StGB consists of only a few words. According to the Federal Constitutional Court, it is "just barely" constitutional. Especially with regard to this element of the offense, it is easy for public prosecutors and investigating authorities to (often) criminalize entrepreneurial actions allegedly after the fact - and even years later.
Our attorneys have defended and advised in numerous preliminary proceedings on suspicion of breach of trust.
We therefore know that a variety of factual circumstances can be grounds for initiating criminal proceedings for embezzlement. Apart from a few clear-cut cases ("managing director reaches into the company's coffers"), criminal law practice frequently involves a wide variety of business decisions. Often involved are transactions that in retrospect have proven to be a failure or (clearly) disadvantageous for the company. Public prosecutors often raise the accusation years later, after the business has failed, that those responsible for the company should have recognized this at the time of the entrepreneurial decision (when the prospects of success or failure were not yet foreseeable). In the criminal law review, on the other hand, it is the time of the decision that matters, not the time of the failure.
Some examples from criminal law practice include:
- failed credit commitments or hastily extended loans (e.g. by credit institutions, but also companies), lack of collateral
- Company-damaging legal transactions, such as company purchases, contracts, improper prices, lack of consideration
- In-itself transactions of board of directors or managing director with persons close to him (e.g. family members)
- Mayor with regard to municipal assets
- Unnecessary, unlawful or too expensive expenses of companies
- too high or unjustified remuneration of board members, supervisory board members and leading employees, punishable pension promises ("golden parachutes" when leaving) etc.
- the creation and maintenance of so-called black funds within companies and government agencies.
Damage and breach of duty
Since allegations of embezzlement are usually made in the business world, allegations of embezzlement in five or six figures or in the range of several million euros are often alleged. In addition to the generally problematic indeterminacy of the offense itself, the determination of damages is particularly difficult. Particularly in complex economic contexts, the question of whether there is any damage at all, and how this could be quantified, is highly demanding in terms of criminal law. This is why criminal proceedings for embezzlement very often involve the provision of various expert opinions, and often enough a veritable "battle of the experts" takes place.
The question of whether a criminal breach of duty has occurred is particularly relevant with regard to so-called risk transactions. It should be noted that entrepreneurial decisions are always accompanied by the entrepreneurial risk that corresponding transactions may prove to be a failure in retrospect. As experienced defense attorneys in the field of criminal law of breach of trust, we know that the corresponding accusations of the public prosecutors are often open to attack, especially in view of this. This also applies with regard to the fact that case law and literature require a particularly serious breach of duty for an embezzlement according to § 266 StGB. At this point, the standards of corporate law are often inadmissibly mixed with the standards of criminal law.
Frame of punishment for breach of trust
If these conditions are fulfilled, § 266 para. 1 StGB provides for a penalty of imprisonment of up to 5 years or a fine. Depending on the individual case, a termination of proceedings can be achieved by the right defense already in the preliminary proceedings. However, this requires the timely involvement of an experienced criminal law specialist.