Concept and significance of embezzlement in German law
The term “Untreue” (embezzlement/breach of trust) in German criminal law refers especially to the violation of fiduciary duties relating to the management of assets, and is principally governed by Section 266 of the German Criminal Code (StGB). Embezzlement is classified as a property offense and protects the assets of third parties from abusive or wrongful asset management by individuals specifically entrusted to do so. This provision falls among the so-called “classic commercial crimes” and is of great practical relevance, particularly in the fields of commercial and corporate law.
Statutory regulation of embezzlement
Wording of Section 266 StGB
According to Section 266 (1) StGB, anyone who abuses the authority granted to him by law, official order, or legal transaction to dispose of another’s assets or to obligate another (elements of misappropriation), or who breaches the duty imposed by law, official order, or legal transaction to safeguard another’s financial interests (element of breach of trust), and thereby causes a loss to the managed assets, is subject to punishment.
Protective purpose of the provision
Embezzlement is aimed at protecting third-party financial interests from abuse and breach of duty by persons especially obligated to manage such assets. The provision presupposes that a person has been assigned a special responsibility concerning another’s assets.
Elements of the offense of embezzlement
Fiduciary duty as a core requirement
A key prerequisite for criminal liability due to embezzlement is the existence of what is known as a fiduciary duty (Vermögensbetreuungspflicht). This duty can arise from various sources, such as by law (e.g., parental custody), by official order, or by contractual agreements (e.g., managing director contract, trust relationship).
Criteria for fiduciary duty
The fiduciary duty must, in its intensity, go beyond mere secondary obligations and presuppose a certain degree of autonomy in dealing with another’s assets. Typical cases include the actions of board members, managing directors, association chairpersons, or trustees.
Elements of misappropriation and breach of trust
Embezzlement can be constituted in two ways:
Element of misappropriation
This occurs when the perpetrator exceeds his existing but legally limited authority of representation or disposition to the detriment of the beneficiary, thereby causing financial loss. The external boundaries of his authority are formally observed, but are exercised contrary to the internal relationship and to the detriment of the beneficiary.
Element of breach of trust
Breach of trust occurs when the imposed duty to care for another’s financial interests is violated, regardless of whether any formal authority to dispose was exceeded. This also includes breaches of fiduciary duties owed to the obliged person, such as by omission.
Financial loss as a result requirement
A real financial loss to the managed assets is always required. This can occur either through direct asset depletion or by a legal or economic deterioration of the financial situation. The assessment is made according to economic standards.
Intent as a subjective element of the offense
For liability due to embezzlement, intent is required. The perpetrator must be aware of his fiduciary obligation, the breach of duty, and the resulting financial loss, or at least anticipate these possibilities and accept them.
Criminal sanctions and penalties
Embezzlement in its basic form is punishable by a prison sentence of up to five years or a monetary fine. In particularly serious cases, Section 266 (2) StGB allows for a prison sentence of six months to ten years. Particularly serious cases may involve significant financial damage or a special position of the perpetrator.
Embezzlement and its relation to other areas of law
Embezzlement in corporate law
In the context of corporate law, embezzlement is of special relevance, for example regarding board members or managing directors who have control over company assets or abuse their decision-making authority. Violations can lead to civil claims for damages in addition to criminal consequences.
Embezzlement in labor law
Employees who, based on a special relationship of trust, are entrusted with managing another’s assets can also fulfill the elements of embezzlement through abuse or unauthorized acts. This is particularly central when dealing with money, goods, or sensitive data.
Embezzlement in the public sector
In public service and for officeholders, embezzlement gains significance especially in connection with budgetary funds or the administration of monies. Here, breaches of special political or official duties are also often in focus.
Distinction from other property offenses
Embezzlement differs from other financial offenses such as theft or fraud in that the perpetrator acts within the framework of an existing, legally granted fiduciary duty. In contrast, theft involves a taking from outside; in fraud, deception regarding facts is the central aspect.
Procedure and prosecution
As embezzlement is an official offense, it is prosecuted ex officio as soon as there are sufficient indications of reasonable suspicion. Investigations are typically challenging due to the complex economic and legal circumstances involved. Expert reports are often required to determine the extent of damages and the scope of breach of duty.
Statute of limitations in cases of embezzlement
The limitation period is generally five years from the completion of the offense pursuant to Section 78 StGB. In particularly serious cases, it is extended to ten years. The start of the limitation period depends on when the act, as defined by law, is completed and when the resulting damage has definitively occurred.
Embezzlement in case law
The requirements for the existence of a fiduciary duty and the proof of a financial loss are subject to differentiated case law. The Federal Court of Justice has specifically clarified that liability for every breach of internal rules does not suffice; rather, the breach and the loss must be closely linked.
Conclusion
Embezzlement under Section 266 StGB is one of the most important property offenses in German criminal law. It requires a qualified position of trust for the protection of third-party financial interests and penalizes both the abuse of formal authority and the culpable violation of existing duties. Actual application always requires careful examination of all factual and legal prerequisites and is of crucial importance in the context of economic and corporate matters.
Frequently Asked Questions
Are there legal consequences of infidelity in German family law?
In German family law, infidelity — i.e., engaging in an intimate relationship with a third person while married — generally no longer plays a direct role. The concept of fault was largely abolished in the 1977 reform of matrimonial law. The central precondition for divorce today is the ‘principle of irretrievable breakdown’, meaning the marriage must have failed. Infidelity can be an indicator of the breakdown of marriage and may lead to a quicker separation; however, direct sanctions such as damages or penalties are generally not to be expected. In certain exceptional cases, infidelity may, for example, affect spousal support or custody if it constitutes grossly unreasonable behavior or has a negative impact on the child’s welfare.
Can infidelity affect entitlement to spousal support?
Infidelity alone does not automatically lead to loss of entitlement to spousal support. Support law generally focuses on need and financial capacity. However, Section 1579 BGB and related provisions set out exceptions (‘grossly unreasonable conduct’): In severe cases, the claim for support may be restricted or even denied if the infidelity goes along with particularly egregious conduct (e.g., openly flaunting the affair and demeaning the spouse) or with other serious breaches such as the waste of joint assets. Case law here is restrictive — an extra-marital relationship as such is usually not sufficient.
Is infidelity a criminal offense under German criminal law?
In German criminal law, infidelity — in the sense of an extra-marital affair — does not constitute a criminal offense. The classic ‘adultery offense’ (former Section 172 StGB) has been abolished and is no longer part of the applicable criminal law. Only in special contexts — for example, intentional transmission of serious diseases such as HIV or violations of copyright law (e.g., dissemination of private photos) — may prosecutable acts be present which are connected to the context of infidelity, but cheating itself is not a crime.
Does infidelity affect custody or visitation rights with children?
In principle, infidelity has no direct effect on custody or visitation rights. The welfare of the child is paramount (Section 1671 BGB). A parent can only lose or have custody restricted if the relationship with a third person concretely endangers the child or causes the child substantial harm. The mere fact of a new partnership or cheating does not fulfill this requirement, unless the conduct is accompanied by dangers such as neglect, violence, or psychological pressure.
Are there possible claims for damages in cases of infidelity?
As a rule, infidelity does not give rise to a claim for damages between spouses. Marriage as a form of cohabitation is not an obligation under the BGB (Civil Code) that provides for classic claims for damages. Historically, this was viewed differently, but that is no longer the case. Exceptions may theoretically arise if, in connection with infidelity, assets are unlawfully dissipated or joint financial interests are harmed (e.g., squandering marital assets to finance a new partner). Even in these cases, concrete financial damages must be proven.
Can a lover be held civilly or criminally liable for ‘inciting infidelity’?
There is no provision in German law making a third party, i.e., the lover, civilly or criminally liable for causing infidelity. Tort claims for ‘serious infringement of personal rights’ are also regularly rejected in the context of infidelity alone. Entering into a relationship with a married person is legally permitted and does not lead to direct legal consequences for the third party involved.
Does infidelity play a role in division of marital property or the equalization of accrued gains?
Regarding the division of assets, the principle of equal treatment applies (Section 1378 BGB; equalization of accrued gains). Infidelity is generally not a criterion for property division. Only in exceptional cases, such as when one spouse intentionally squanders or dissipates shared assets during an affair, can this be considered a so-called ‘disloyal reduction in assets’ under Section 1375 (2) BGB. In such cases, the affected spouse may have a claim for equalization against the other. However, this requires concrete proof that the assets were deliberately reduced to the detriment of the partner.
Is a marriage contract that punishes infidelity valid?
Marriage contracts in which the spouses, for example, agree on penalties for infidelity (such as contractual penalties, exclusion from support or community of accrued gains) are permissible within certain limits, but are subject to strict judicial content control (Sections 138, 242 BGB). Immoral provisions or those that unfairly disadvantage a partner or are procured under duress are, in line with supreme court case law, invalid. The actual validity of an infidelity clause depends on the specific case; flat-rate penalties for extra-marital relationships are, however, often considered immoral and thus invalid.
