Accusation of breach of trust in commercial criminal law

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Accusation of breach of trust in commercial criminal law

Law firm for criminal law in Kerpen, Cologne and Witten

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Infidelity pursuant to Section 266 of the Criminal Code is an offense standard of almost unparalleled vagueness and vagueness. Therefore, for law enforcement agencies and courts, breach of trust is an all-purpose weapon in the Business Criminal Lawwhich can be used to criminalize entrepreneurial activity with ease after the fact. Accusations of embezzlement are therefore dangerous for the accused: Not only are the individual requirements for committing the crime hotly disputed, but the vague wording of the norm also frequently leads the public prosecutor's office and the courts to interpret the wording of the criminal norm in an expansive manner.

Another danger is that allegations of embezzlement can be made in many areas of business life: The spectrum ranges, for example, from accusations against a board member who initiated a business transaction for his company that subsequently turned out to be a failure, to accusations against a bank employee who is responsible for a loan commitment that got out of hand, to a managing director who invited his supervisory board to opulent events. Another risk in the case of embezzlement is that allegations of embezzlement, such as tax evasion, can very often also arise in connection with allegations of corruption and bribery.

General information on breach of trust: scope of punishment, object of protection, purpose of the norm

General information on the accusation of breach of trust in commercial criminal law

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The breach of trust acc. § 266 StGB is punishable by imprisonment for up to five years or a fine. 

The purpose of disloyalty according to § 266 StGB is to protect the individual assets of the trustor. The specific wrong of the offense lies in the misuse of a position of duty granted to another's property, thus in the damage to another's property from within. 

In addition, the range of punishment for embezzlement under Section 266 (2) of the German Criminal Code increases drastically from six months to ten years if embezzlement is suspected in a particularly serious case. This can be assumed, among other things, if the perpetrator is said to have acted commercially or to have caused a large-scale loss of assets. Therefore, allegations of embezzlement in a particularly serious case are frequently made in cases relating to business or banking. In such cases, prison sentences of more than two years are regularly imposed, which can therefore no longer be suspended. 

Moreover, a conviction for breach of trust pursuant to Section 266 of the German Criminal Code (StGB) may lead to the fact that the activity of a GmbH managing director or an AG board member can no longer be exercised, Sections 6 of the German Limited Liability Companies Act (GmbHG), 76 of the German Stock Corporation Act (AktG).

Central elements of the crime of breach of trust

The crime of breach of trust

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.

Abuse, Sec. 266 (1) Var. 1 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.

Breach of trust, Section 266 (I) (2) of the Criminal Code:

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 property guardianship obligation of § 266 of the Criminal Code:

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.

Wealth disadvantage for the assets under management:

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. 

Particularities of the defense in the case of the accusation of breach of trust

Features of the defense

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It should be borne in mind that on the other side there are usually no ordinary prosecutors, but rather with economic criminal law special departments that are very familiar with these proceedings. For this reason, effective criminal defense can only be ensured by hiring a criminal defense attorney who is experienced in dealing with such proceedings as early as possible. 

Furthermore, civil law expertise is necessary to assess the allegation. When assessing whether the facts of breach of trust have been established, the degree of contractual breach of duty is always a decisive factor. For this assessment, legal questions under civil law within the criminal Assessment to be checked. This should be taken into account when choosing a Lawyer be taken into account. For only through the involvement of a lawyer who is also versed in civil law can the Lawyer all options for discontinuing the proceedings or obtaining an acquittal can be identified and exhausted.

Behavior of the person affected by the accusation of infidelity

Conduct in the event of an accusation of embezzlement

Accused persons usually learn of the investigation against them as a result of a summons to appear before the police or a search warrant. In these cases, under no circumstances should a statement be made to the police without a Lawyer to have been questioned in advance. It is neither advisable nor obligatory for defendants to comply with a police summons. This is especially true if the accused is actually innocent. Whether it makes sense to make a statement to the public prosecutor's office or the police can only be judged after the files have been inspected. As the accused, you should therefore allow the defense counsel to inspect the entire investigation file and work out an effective defense strategy together.

Simultaneous defense of civil claims alongside defense in criminal proceedings

Defense against civil claims

As a rule, in addition to the initiation of preliminary proceedings by the public prosecutor's office, claims for damages are asserted by the allegedly injured persons or companies. It is important here that the arguments in the various proceedings are always consistent. This should be ensured in an efficient and comprehensive Defense strategy not be disregarded.

Our assessment of damage limitation

Damage limitation

In many cases involving allegations of embezzlement, there is a good chance of avoiding an indictment with the timely involvement of an attorney who is familiar with the Business Criminal Law experienced Criminal defense lawyer to avoid. Financial changes, incorrect accounting and influences on assets are often complex and leave room for discretion. In many cases, proof is hardly possible or contradictory statements are faced. 

It is precisely for this reason that the verifiability of disloyalty is difficult, which in turn can offer approaches for a successful defense. The subjective factual side of embezzlement also contains connecting factors to make it more difficult to prove embezzlement, especially if the person responsible believed that he or she was acting for the benefit of the assets under his or her care. We will be happy to advise you on all legal issues relating to the subject of disloyalty. 

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Law firm for criminal law in Kerpen, Cologne and Witten

Lawyer for - Labor Law | Criminal Law | IT Law | Data Protection