The fraud according to § 263 StGB

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The fraud according to § 263 StGB

Law firm for criminal law in Kerpen, Cologne and Witten

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In our everyday lives, small deceptions or even lies are omnipresent. Statistically, every person lies about 25 times a day. In doing so, we deliberately do not tell the truth about things, omit information or do not pass it on correctly. The reasons for this are as varied as the deceptions themselves. The basic values that a person should be taught in the course of his or her life are that one should be honest throughout and not tell lies. At the same time, one is taught by society that it is okay to not always tell the truth once in a while. In reality, the birthday gift may not be as nice as you think it is. But this is just a pure conflict between honesty and politeness towards another's effort.

A distinction should therefore be made between good and bad lies. If one does not tell the truth in order to protect others or oneself, then one would rather sort this into the category of "good" lies. If, however, one lies in order to gain an advantage or to damage the assets of others, then these are logically "bad" lies. The damage can be caused either by deliberate misinformation or by the omission or concealment of relevant information. Within a criminal-legal view the § 263 StGB comes thus to the application. This regulates the facts of fraud.

The scam
Any person who, with the intention of obtaining an unlawful pecuniary advantage for himself or herself or for a third party, damages the property of another by creating or maintaining an error by pretending to be false or by distorting or suppressing true facts, shall be punished by imprisonment for not more than five years or a fine.

Statistically, the case of fraud occurs frequently. Thus, in 2021, the following offenses were prosecuted. A total of 793,622 individual cases were recorded and recorded.

In detail:

  • Merchandise and trade credit fraud: 291,129 cases
    • Including tank fraud: 51,108 cases
  • Obtaining benefits by fraud: 166,997 cases
  • Fraud or computer fraud: 64,663 cases.

As soon as you take a closer look at § 263 StGB, you can already see the necessary prerequisites for the offense at first glance. Thus, a deception, an error caused by the deception, a disposition of property and, as a result, a pecuniary loss are required. The subjective elements of the offense require intent and an intention to enrich oneself or a third party. As with any examination of a criminal offense, the accused perpetrator must also act unlawfully and culpably.

The legal object and the character of the offense

Legal interest and character of the offense

Fraud is a pure property crime. This means that the standard is intended to protect the property and entire assets of persons. Section 263 of the German Criminal Code (StGB) punishes both intentional and attempted fraud. A prerequisite for fraud is therefore, among other things, the occurrence of a financial loss. 

This means that a victim of fraud voluntarily disposes of his or her assets and a third party or the perpetrator himself or herself is enriched. The disposition of property is a requirement that is not written in the law (unwritten element of the crime). In simpler terms, fraud is a crime of self-inflicted damage, which is why it must be distinguished from theft and robbery as crimes of external damage. The enrichment obtained must also be "similar in substance" to the damage. It can therefore be stated that there must have been a transfer of assets.

Separate variants of fraud were regulated in the Criminal Code under the following norms:

- Computer fraud after § 263a StGB
- Subsidy fraud after § 264 StGB
- Investment fraud after § 264a StGB
- Credit fraud after § 265b StGB.

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The deception

Deception as an element of the offense

Deception is the first element of fraud. More precisely, it should actually be called deception about facts, even if this seems literally wrong at first glance, because there is no deception about real facts, since facts always exist. Nevertheless, the subject of a deception is always a fact. The deception can occur explicitly, impliedly or by omission. It is mandatory to cause or increase an error by deception. If this is not the case afterwards, fraud can no longer be assumed.


You do your weekly shopping and at the checkout the cashier mistakes a banknote. Instead of a 5 € bill, she hands out a 50 € bill. The buyer does not commit fraud merely by accepting the bill, since the act of deception is lacking.

However, a distinction must be made between facts that refer to the external world and facts that refer to mental processes, i.e. internal processes. The latter mainly governs intentions or attitudes. This subdivision becomes interesting when one deceives or wants to deceive about facts that are still in the future. According to the wording of the fact, this is not possible at all. An example here would be the typical cell phone case.


A passerby is asked if he will lend a perpetrator his cell phone to make a call because he has forgotten his. He tells him that he will give it back to him, which he does not intend to do at all. Since the fact of the return has not yet happened, the focus here is on the moment, which describes the future aspect of the return. Regarding a conceivable fraud, however, it becomes critical again in the question of custody. More on this later.

Expressions of opinion and value judgments

Real and subjective statements of fact

Furthermore, it is important to distinguish between real statements of fact and merely subjective expressions of opinion or value judgments. An own statement about a thing is e.g. "I like your ring very much". Here the opposite still enough clearance is made available, in order to make itself the picture of the ring and to form its own opinion. Do you agree or disagree? 

A statement in a jewelry store, for example, "This white gold ring is very beautiful, due to its set diamond with, high resale value." could well be assumed to be a deception if the facts are not true. The statement about the ring includes not only the subjective opinion of the seller, but also statements about business relevant facts and authenticity. The boundaries between expressions of opinion or value judgments and facts are fluid and thus individual control is always required.

Advertising statements are also unsuitable for the assumption of fraud. It is not uncommon for an advertising statement to be deliberately and purposefully exaggerated with praise. In contrast to a fact, these statements are also called "advertising statements of opinion". The borderline to fraud is also fluid here. A possible fraud begins when a thing is deliberately promised certain properties that do not exist. It remains important here to consider whether and to what extent the environment will regard a statement as a "promise" or as a purely fact-neutral expression.

As already mentioned above, it is important to mention deception by means of explicit words that are expressed verbally and implied deception. The former includes, among other things, deception through words and writing (not only from person to person, but also via telephone, e-mail, SMS, etc.), but also non-verbal expressions such as signs or gestures. 

On the other hand, the person who does not explicitly express the untruth, but who declares it according to the general understanding (the traffic perception), deceives implicitly. The third and final type of deception is deception by omission. The prerequisite for this is the guarantor's duty, which a person must have and must inform the other person, for example, about certain things. He must consciously omit this. The clarification itself must have been reasonable and possible for the offender. The punishment of the perpetrator is made possible by § 13 of the StGB.

It states:

A person who omits to avert a success that is part of the elements of a criminal act shall be liable to punishment under that act only if he is legally responsible for the fact that the success does not occur and if the omission corresponds to the realization of the legal element of the offense by an act.

The consequence of the guarantor's failure to disclose must therefore be a reduction in the victim's assets, which occurs because the victim did not know better, but could have known better through the perpetrator.

The error

The error as a prerequisite for deception

According to § 263 StGB, the perpetrator must have caused or maintained a mistake in the victim by his deception. The error itself is therefore the centerpiece, but mandatory prerequisite for the disposal of the victim. The error is thereby an incorrect conception of the victim about the reality. This must then always refer to the fact about which the perpetrator has also deceived. The deception and the error caused or increased must correspond to each other and only for this reason may the victim have disposed. 

In other words, the perpetrator must have causally caused the excited error (according to the equivalence theory). Whether the error was first aroused or already existed and was only entertained is irrelevant. In the case of arousing an error, this was not yet present at the time of the deception. The maintenance of an error is based on factual changes. In this case, there is no direct act of deception, but the perpetrator would have had to ensure that an already existing misconception was eliminated.

If we look again at the cashier case, where the victim gives the "perpetrator" too much change, fraud could also be assumed here at first. However, this assumption fails if it is merely a case of taking advantage of the situation. This is the case if the perpetrator is not in a guarantor position and allows the error to work to his advantage without intensification. The exploitation of a situation itself remains unpunished and is not prosecuted. The act of deception is therefore missing. The same is the case with change.

The disposition of property

Self harm and harm to others

In order for the fraud to be accepted, even after an act of deception and a mistake have been established, a disposition of property by the victim is required. In this point, the consideration of the crime of self-inflicted damage and the crime of damage to others becomes more apparent. Thus, also the distinction between fraud and theft. In the case of the disposition within the scope of a self-inflicted crime, this standardizes an "act of giving". Thus, the disposition of property conceptually includes any voluntary behavior. 

This can be found either in an active action, acquiescence or omission, which, however, must directly cause the reduction in assets. A further important characteristic is that the person disposing is identical with the deceived person. This makes it possible that there is a third party who has been harmed. The so-called triangular fraud. In this case, the injured party must take the disposition of the other person into account or allow it to be taken into account. This is done according to various theories. Among others, there is the theory of de facto proximity, the bearing theory and the authority theory.

Since the disposition itself is not a disposition under civil law, it is also possible for persons incapable of contracting to make a disposition in the context of fraud under Section 263 of the Criminal Code. This includes, for example, children or the mentally ill. Since a disposition is a transfer of property, the property disadvantage on one side must also be the property advantage on the other side. As soon as a thing is destroyed by a disposition, for example, the material equality of the disposition and the pecuniary advantage fails. For a disposition to occur, a change of custody must have taken place. 

Custody describes the actual possibility of exerting influence or control over an object itself. The disposition necessarily requires the elements of immediacy, consciousness of disposition and voluntariness. Particularly in the context of voluntariness, it should be mentioned that fraud cannot be assumed if the victim does not voluntarily relinquish his custody over an object, but is, for example, coerced into doing so and subjectively no longer sees any alternative to the act. In the case of no voluntariness, the consequence would be criminal liability for theft in the context of trick theft or extortion.

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The pecuniary loss

Definition of pecuniary loss

The asset misappropriation must also have caused a financial loss. This damage can be caused either to the deceived person or to a third party. The damage terminates the fraud and distinguishes it from a merely attempted fraud. According to the application of the balance theory, a negative balance must have occurred in the victim's assets. He has not received a suitable countervalue for his disposition.

The subjective facts of fraud

Subjective facts

All the above-mentioned objective requirements must be met. There are, however, special subjective requirements which must also be met for the perpetrator to be punished for fraud under Section 263 of the Criminal Code. Fraud is a so-called classic intent crime. It is therefore not possible to commit negligent fraud. The intent to commit the offense must therefore fully relate to the knowledge and intent of the objective elements of the offense. However, a conditional intent is sufficient. However, there is a lack of intent if one believes one's incorrect assertions to be true.

The intention to enrich

Definition of the intention to enrich

In addition to the general intent, which the perpetrator must have, an intention to enrich is also required. This intention of enrichment merely describes the striving for a material pecuniary advantage on the part of the perpetrator. Thus, he must want to increase his economic value. It does not depend on whether he wants to procure this pecuniary advantage for himself or for a third party. Therefore, in both cases (self-interest and third-party interest), the intention to enrich is involved. 

The actual object of the intention to enrich is the pecuniary advantage itself. The pecuniary advantage on the part of the perpetrator is thus the appropriate counterpart to the pecuniary loss on the part of the victim. The pecuniary advantage would thus include any more favorable arrangement of the property. It is sufficient for a pecuniary advantage that the perpetrator has gained possession or ownership of an object.

Illegality of the intention to enrich

Criminal liability for fraud

In order for the perpetrator to remain liable to prosecution for fraud, the intention to enrich must be unlawful. The intention to enrich or the pecuniary advantage is unlawful if the perpetrator does not have his own legally well-founded and due, plea-free claim to it. In assessing this, it is solely a matter of substantive law, i.e. civil, public or tax law. It does not matter what kind of claim it is. 

If the intention to enrich should not be unlawful due to the claim that is due and without defense, criminal liability for fraud does not apply. If, for example, a contract is null and void, criminal liability for fraud continues to exist because a claim never ex tunc existed. In this respect, it is only decisive whether the final objective was unlawful and, in this respect, no longer the path of realization.

However, it could be problematic if the perpetrator believes that he has a claim to the enrichment, but in fact this does not exist. In this case, the perpetrator is subject to an error of fact pursuant to Section 16 of the Criminal Code.

A person who, when committing the act, is unaware of a circumstance that is part of the statutory offense does not act intentionally. Criminal liability for negligent commission remains unaffected.

In this case, the perpetrator wants to enforce a claim that is in reality illegal, but lawful according to his or her ideas. However, the perpetrator does not commit an attempt to defraud. Criminal liability is therefore not applicable when considering the subjective aspect of the perpetrator's conception. The perpetrator must have a clear idea about the claim and not only vague ideas. For this purpose, one can make use of the fact that the perpetrator subjectively believes that he can also enforce his claim before a civil court and that this claim would be recognized by the courts.

Legal consequences

Legal consequences of fraud

The legal consequences of fraud are subdivided according to the respective type of fraud. For "normal fraud" and "petty fraud", paragraph 1 of Section 263 specifies the legal consequences. Paragraph 2 is relevant for the attempt and paragraph 3 for the particularly serious case. Gang fraud is governed by paragraph 5. In the case of "normal fraud," since it is merely a misdemeanor, a prison sentence of one month to five years is possible. Furthermore, it is open to the court to make use of a fine. 

Daily sentences of five to 360 daily sentences are possible here. A fine is also conceivable in addition to the custodial sentence. The court must observe the generally applicable sentencing principles. The imposition of supervision of conduct may also be ordered.

The facts of fraud are not simple and require legal assessment and evaluation in all constellations. If you have any questions or are accused of fraud, please do not hesitate to contact us!

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The subsidy fraud according to § 264 StGB

The subsidy fraud

Another form of fraud and regulated under its own criminal law standard, is the Subsidy fraud according to § 264 StGB. A subsidy is a benefit from public funds that serves to promote the economy.

A person shall be liable to a custodial sentence not exceeding five years or to a monetary penalty if he/she provides incorrect or incomplete information to an authority responsible for granting a subsidy or to another body or person involved in the subsidy procedure concerning facts relevant to the subsidy for himself/herself or for another person which are advantageous to him/her or to the other person.

Thus, anyone who provides the subsidy provider with incorrect or incomplete information about facts is liable to prosecution. In direct comparison to fraud, which involves deception, error and misappropriation of assets, subsidy fraud is punishable in advance. The mere attempt to deceive, i.e. the provision of false information, may possibly result in criminal liability. Whether the subsidy provider subsequently discovers that the information is false or even knew of its falsity is irrelevant. The aspects of recognizability of the fraud and a possible disbursement of the subsidy are subsequently of importance for a penalty assessment.

With of importance for the assessment of the Subsidy fraud is the Subsidies Act per se. The fact that the respective subsidy recipient has a comprehensive duty of disclosure follows from Section 3 of the SubvG.

The Recipient of the Subsidy is obliged to inform the Subsidy Provider without delay of all facts which prevent the Subsidy or the Subsidy Advantage from being approved, granted, continued to be granted, used or left in place or which are significant for the reclaiming of the Subsidy or the Subsidy Advantage. Particularly existing duties to disclose shall remain unaffected.

Still topical is the case of the Subsidy fraud within the framework of the "Corona Emergency Aid". A case of subsidy fraud occurs when the applicant has provided false or incomplete information beneficial to him or others, the subsidy granted is earmarked but has been used for a different purpose, has not fulfilled his duty of disclosure, or has provided an incorrect or incomplete statement, thereby using a certificate of subsidy eligibility.

If you are a subsidy recipient and proceedings are initiated against you, you will be notified in writing. First and foremost, you must remain calm and exercise your right to remain silent. Legal counsel is unavoidable from this point on. He or she will discuss a defense strategy with the accused. We have already reported extensively on the subject of subsidy fraud on our website. Please refer to the other articles in our "Corona Law" section.

We would also like to educate and report on the topics of credit fraud and capital investment fraud under the respective links.

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