Accusation of breach of trust in commercial criminal law

The elements of the crime of breach of trust consist of the elements of abuse pursuant to Section 266 (1) Var. 1 StGB and the elements of breach of trust pursuant to Section 266 (1) Var. 2 StGB.

In this manner of commission sanctioned by the norm, the perpetrator violates his right to dispose of another's property by concluding an effective legal transaction with a third party to which he was not authorized in the so-called internal relationship. The act of committing a crime is therefore the abuse of an authority granted by law, legal transaction or official order to dispose of another person's property. In doing so, the trustee exceeds the legal authorization in the internal relationship while at the same time making his actions effective in the external relationship.

Section 266 (1) Var. 2 of the German Criminal Code (StGB) is relevant as a subordinate element of the offense if misuse of assets has taken place, but this cannot be fulfilled in the external relationship due to the lack of effectiveness of the legal transaction - for example, due to a violation of prohibition laws or morality, which can result in nullity.

The duty to manage assets is the duty that exists in the internal relationship between the settlor as the owner of the assets and the settlor. The content of the duty to manage assets is characterized by the management of third party assets.

Infidelity is to be qualified as an offense of success, which is why a pecuniary disadvantage must have occurred for the trustor. According to supreme court rulings, even the threat to assets already constitutes a pecuniary disadvantage.