Corruption and breach of trust

The term corruption refers to the abuse of a position of trust or decision-making authority for private gain or to obtain an unjustified advantage. Corruption offenses can be found in all areas of society – affecting private life, but also those in public, economic, legal, or political responsibility, for example, in companies, government agencies, and other institutions. Corruption can thus be carried out on both a small and large scale. In most cases, the material advantage relates to money, but discounts, loans, bonuses, or intangible benefits such as honors, career advancements, or sexual favors are also conceivable. Corruption usually has devastating consequences on a social, economic, or political level. In Germany alone, corruption causes millions of euros in damages annually. At the same time, there are also socially acceptable benefits between business partners that are unproblematic, such as invitations or gifts. An assessment of this fundamentally depends on the objective ability to exert influence and, in particular, on the circumstances of the individual case.  

Corruption offenses require at least two actors: the briber and the bribed. In some situations, a client may also be involved. A fundamental distinction is made between situational and structural corruption. Situational acts of corruption are acts that are a spontaneous and immediate reaction to an emerging situation and are not based on planning. Structural corruption, on the other hand, is a planned act that is carried out consciously and often has existed for a longer period of time. 

Criminal corruption offenses

The Criminal Code regulates various offenses that fall under the colloquial term of corruption.

Corruption in business transactions

Sections 298-300 of the German Criminal Code are part of commercial criminal law and serve to protect national and international competition. § 298 StGB regulates anti-competitive agreements in tendersAn agreement that is unlawful in this sense can be punished with a prison sentence of up to five years or with a fine. 

• 299 StGB represents the central regulation for the Bribery and corruption in commercial transactions According to Section 301 Paragraph 1 of the German Criminal Code (StGB), this is only prosecuted upon request unless there is a particular public interest in prosecution. According to Section 299 Paragraph 1 No. 1 of the German Criminal Code (StGB), anyone who, in the course of business, as an employee or agent of a company demands, accepts, or accepts an advantage for themselves or a third party in return for unfairly favoring another party in domestic or foreign competition when purchasing goods or services. According to Section 299, Paragraph 1, No. 2 of the German Criminal Code (StGB), anyone who, without the consent of the company, demands, accepts, or accepts an advantage for themselves or a third party in return for performing or omitting an action when purchasing goods or services, thereby violating their obligations to the company, will be punished in the same way. 

For these realizations of the facts, a Imprisonment of up to 3 years or a fine provided for. Only those who, as agents or employees, are bound by instructions from the business owner through an employment relationship and can thereby influence decisions regarding business transactions can be considered perpetrators. Regarding the prerequisite of business transactions, all that is required is the promotion of any business purpose when purchasing goods or services. The act presupposes at least an intended unlawful agreement in the form of an advantage. A completed granting of an advantage is not even necessary here – rather, the mere demand for an advantage is sufficient to constitute the offense. At this point, a distinction is made between the competition variant (No. 1), which requires preferential treatment when purchasing goods, and a breach of duty when purchasing goods (No. 2). 

Bribery, regulated in a mirror image in Section 299, Paragraph 2 of the German Criminal Code, places the granting, promising, or offering of such an advantage under Sections 299, Paragraph 1, No. 1 and No. 2 of the German Criminal Code under the same penalty. Unlike corruption, this offense can be committed by anyone. 

• 300 StGB is the corresponding Qualification for particularly serious casesThis is usually the case when the benefit is of a large scale. In this case, the penalty increases to a prison sentence of three months to five years.

Sections 299a and 299b of the German Criminal Code (StGB) also represent special cases of bribery and corruption in the healthcare sector. 

Corruption among public officials

The criminal offenses relating to Corruption among public officials are in the §§ 331-335a of the Criminal Code They are intended to ensure public trust in the public service, especially its integrity and integrity. These are divided into accepting bribes, taking bribes, granting bribes, and bribery. 

The Acceptance of benefits or -granting refers to a lawful official act or omission. In contrast, the Bribery and corruption a breach of official duties.

The subdivision of the offenses also serves to limit the circle of perpetrators. While accepting bribes and taking bribes can only be committed by public officials or those under official duty (Sections 11 (1) No. 2 and 4 of the Criminal Code) on the receiving side, granting bribes and giving bribes can be committed by anyone on the giving side. 

The penalty for accepting an advantage according to § 331 StGB, or for granting an advantage according to § 333 StGB amounts to Imprisonment of up to 3 years or a fine. 

Bribery according to § 332 StGB is threatened with imprisonment between 6 months and 5 years, the bribery according to § 335 StGB between 3 months and 5 yearsAccording to § 335 StGB this can particularly serious cases to a prison sentence of between one and ten years. This is usually assumed if the benefit exceeds €50,000, if the activity is commercial, or if the activity is carried out as part of a gang. Bribery or corruption committed by a judge or arbitrator also carries the risk of a higher penalty. 

Another possible consequence is dismissal from service.

infidelity

Another central provision of white-collar criminal law is breach of trust. This offense is regulated in Section 266 of the German Criminal Code. 

A distinction is made between two case scenarios. First, the provision protects cases of abuse pursuant to Section 266, Paragraph 1, Alternative 1 of the German Criminal Code. These are cases in which the perpetrator abuses the authority entrusted to him to manage another's assets, for example, by exceeding the limits of the authority. 

On the other hand, there is the breach of trust variant under Section 266, Paragraph 1, Alternative 2 of the German Criminal Code (StGB), which is linked to the breach of a duty to specifically manage assets for the benefit of others. This does not require a specific authority to dispose of assets. Rather, it involves actual power of influence that must result from a primary obligation. Such cases are conceivable, for example, in enforcement proceedings, for example, by a bailiff, or between commercial agents or authorized signatories and their principals. 

The penalty for breach of trust is imprisonment for up to 5 years or

to a fine. Especially for first-time offenders, a verdict is often issued without a trial by means of a penal order. Particularly serious cases of breach of trust are punishable by imprisonment of between three months and ten years, according to Section 266, Paragraph 2 of the Criminal Code in conjunction with Section 263, Paragraph 3 of the Criminal Code. 

The withholding and embezzlement of wages, as well as the misuse of check and credit cards, are specifically regulated in Sections 266a and 266b of the German Criminal Code.