Fraud: In Germany, fraud is neither one of the most serious offenses in German criminal law nor one of the most lenient, but is within the normal range with a corresponding expectation of punishment. Depending on the form in which it is committed, it is certainly associated with serious consequences, which can also increase rapidly.Fraud: In Germany, fraud is neither one of the most serious offenses in German criminal law nor one of the most lenient, but is within the normal range with a corresponding expectation of punishment. Depending on the form in which it is committed, it is certainly associated with serious consequences, which can also increase rapidly.
Lawyer for fraud: legal system
It starts with the offense of fraud: “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 an error by false pretenses or by distorting or suppressing true facts (…)”, can expect a prison sentence of up to 5 years, with no minimum term of imprisonment. If one then causes a considerable loss of property or acts commercially, it is already a serious fraud with a minimum penalty of 6 months. If one commits a fraud as a gang already threatens a prison sentence of at least one year.
Fraud is supplemented by numerous special offenses, such as fraud in the performance of services or computer fraud. In contrast, fraud by acquisition and fraud by performance are not special offenses but only forms of fraud.
- § 263 – Fraud
- § 263a – Computer Fraud.
- § 264 – Subsidy Fraud.
- § 264a – Investment fraud
- § 265 – Insurance abuse
- § 265a – Obtaining benefits by fraud.
- § 265b – Credit fraud
- § 266 – Untreue
- § 266a – Withholding and misappropriation of pay.
- § 266b – Cheque and credit card fraud
Defense tactics & special problems in a fraud.
The above-mentioned minimum terms of imprisonment are to be considered, with typical sequences. However, the option of the “less serious case” according to §263 para.5 StGB is available, with which at least the sentencing can still be worked on if all the prerequisites for the offense are met.
Fraud can also be committed by omission, for example when selling a used car and concealing known defects, although one must be aware of the case law on the limited obligation to inspect used cars. On the other hand, a doubt on the part of the deceived party may not be sufficient to eliminate the accusation of fraud. Another frequent mistake made by courts is that there must be a direct financial loss, i.e. there must be a connection between the act and the loss – this offers considerable potential in terms of legal remedies.
The facts of the case are particularly extended by the fact that, according to the case law of the Federal Court of Justice, a concrete and direct threat to assets is sufficient to assume a pecuniary loss and thus fraud. In this case, the defense must work carefully in order to work out the necessary limits and to avert a premature conviction.
There are also various manifestations of fraud, but in the end they amount to a “Normal” fraud and are distinguished by their terminology only in the commission of the crime. These are mainly:
- Receipt fraud
- Fulfillment fraud
- Social benefit fraud or “social fraud” for short.
Criminal defense in case of accusation of fraud
I have defended numerous cases of fraud in the district court and regional court, it is not uncommon that these are situations that ultimately developed unplanned and then sometimes got out of hand.
Even if the evidence is clear, a lot can be done by a lawyer for fraud – through clever and thoughtful defense, one can work towards a less serious case and thus reduce the sentence accordingly. However, it should not be overlooked how important it is, especially in the case of fraud, to carry out targeted preliminary work even before the charges are filed. The personal situation of the person accused of fraud must also be taken into account and must not be lost in the main proceedings – trivialization, on the other hand, is harmful.
Our law firm specialises in criminal defence, white-collar crime and IT law / technology law. Note our activity in digital evidence in IT security and software law.