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Below you will find one of the most comprehensive and up-to-date collections of interesting judgments of recent years on the law of breach of trust. You can find further judgments in corporate law on other corporate law topics on the overview page.

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Unfaithfulness through the sale of a property in the absence of transparency and pursuit of self-economic goals

BGH 2021

(1) A breach of duty for the assumption of a breach of trust through the sale of a property can be based on a lack of transparency and on pursued self-economic goals.

(2) For the purpose of determining the objective value of a property, the determination of its market value is the appropriate approach, whereby a purchase price may be used which would be necessary for the acquisition of a similarly situated and equipped property or which an applicant for purchase would spend for it.

Collection of a debtor's claim to an account not belonging to the debtor in insolvency proceedings

LG Bielefeld 2021

1) The criminal offence of § 283d StGB in parallel with § 283 para. 1 no. 1 StGB protects the satisfaction interests of the creditors as a whole.

2) The Federal Court of Justice has explicitly affirmed the protective nature of the offence under Section 283 (1) no. 1 of the Criminal Code. Due to the parallel protective direction of the norms, nothing else applies to § 283d StGB.

Breach of trust in lending

BGH 2021

If there are no detailed guidelines for granting loans or if they are complied with, a breach of duty by a member of the management board of a bank in granting a loan is - in accordance with the liability regulations under company law - in principle only to be affirmed if, in an overall view of all the relevant circumstances, the actions of the member of the management board appear to be unjustifiable and thus the management error appears to be evident.

Members of the Board of Management of a savings bank shall exercise the due care and diligence of a prudent and conscientious manager in their management activities. If this is not expressly stipulated in the savings bank law of a Land, the provision of § 93 AktG shall apply analogously.

If the person obliged to look after assets within the meaning of section 266 (1) of the Criminal Code performs entrepreneurial management and structuring tasks, he regularly has a wide margin of appreciation and discretion. The scope is only exceeded if the willingness to take entrepreneurial risks is irresponsibly overstretched or the conduct of the person obliged to look after assets must be regarded as being in breach of duty for other reasons. This breach of duties under company law constitutes a breach of duty pursuant to § 266 (1) StGB.

On the duties of care of members of the board of directors of a savings bank and bank members when granting a loan.

Follow-up contracts after spin-off of a municipal hospital operation to a proprietary company - examination for breach of trust

BGH 2020

(1) The principle of economy is a general principle of budgetary management applicable to the public sector as a whole and must be observed by all public authorities, irrespective of the basis on which they operate.

(2) If the person obliged to look after assets within the meaning of section 266 (1) of the Criminal Code performs entrepreneurial management and structuring tasks, he regularly has a wide margin of appreciation and discretion. The scope is only exceeded if the willingness to take entrepreneurial risks is irresponsibly overstretched or the conduct of the person obliged to look after assets must be regarded as being in breach of duty for other reasons. This breach of duties under company law constitutes a breach of duty pursuant to § 266 (1) StGB.

(3) A breach of the requirement of economy in breach of duty within the meaning of Section 266 (1) of the German Criminal Code (StGB) shall only be deemed to have occurred as a rule if a consideration is granted which can no longer be objectively justified and is therefore - obviously - inappropriate.

Fax attribution, Corona-related decline in orders, insurance stock company, law firm fee account, recovery dispute, pain and suffering claim, foreclosure, statute of limitations defense, breach of trust

AGH North Rhine-Westphalia 2020

Personal data, Member State law, Air carriers, Processing of personal data, Adequacy decision, Directive application, Central authority, Third country, Obligation to transfer, Transfer of data, Administrative litigation, GDPR, Data protection officer, Adequate level of data protection, Technical and organisational measures, Third country, Automated processing, Serious crime, European Court of Justice, Unaccompanied minor

VG Wiesbaden 2020

Sentencing to a suspended prison sentence, etc., or fine for breach of trust

LG Potsdam 2020

Unfounded claim for prospectus misrepresentation and alleged investment fraud based on participation in oil and gas production rights and related production facilities in the USA

Hamburg Higher Regional Court 2020

(1) Only the person who has become or should have become the investor's contracting party is liable for prospectus liability in the broader sense. By way of exception, a claim may also be made against the agent, broker or administrator acting on behalf of the contracting party if the agent, broker or administrator has placed particular trust in the contracting party or if the agent, broker or administrator has an indirect economic interest of his own in the conclusion of the transaction.

(2) According to supreme court rulings, an investment intermediary or an investment advisor must inform the purchaser of an investment brokered by him, without being asked to do so, about sales commissions if these exceed 15% of the capital to be contributed by the investors. This is based on the consideration that sales commissions of such magnitude allow conclusions to be drawn about a lower intrinsic value and profitability of the capital investment and that this in turn represents a circumstance of such significance for the investment decision that the prospective investor must be informed about this.

(3) Section 264a(1)(1) and (2) of the Criminal Code is only applicable if the offence relates to the investments referred to therein. The term "subscription right" is described in the materials solely in negative terms: According to the official explanatory memorandum, subscription rights do not in any case constitute securities or shares, but are to be equated with them.

Claims for information and damages due to alleged infringements of competition law

LAG Düsseldorf 2020

(1) An employer who learns that his employee has attempted to entice away individual customers may bring a step-by-step action for information, an affidavit and damages, even if he does not yet know whether and - if so - with which customers and to what extent contracts have been arranged or concluded.

(2) The three-month limitation period under Sec. 61 (2) HGB already begins to run if the employer is generally aware of the performance of prohibited transactions, i.e. the "doing of business" for a competitor or the maintenance of an own competing business by the employee.

Corruptibility of a senior savings bank employee

BGH 2019

1. savings banks under the NSpG are "other bodies" within the meaning of section 11(1) no. 2 lit. c StGB.

2. A person employed by a savings bank solely to handle non-performing loans does not perform any public administration tasks.

3. taxes are not expenses within the meaning of § 73d StGB for obtaining the proceeds of the offence.

Conviction for bribery and corruption in the context of an insurance relationship and tax evasion

LG Verden 2019

Compensation, execution, inadmissibility, information, shareholders' meeting

LG Leipzig 2019

Valuation of a swap

BGH 2019

(1) A disadvantage within the meaning of section 266(1) of the Criminal Code may also consist, as so-called endangering damage, in the fact that the victim's assets are concretely impaired on account of the danger of the subsequent final outflow of assets already created by the offence to such an extent that this already constitutes a de facto reduction in assets at this time.

However, the probability of loss must not be so diffuse or so low that the occurrence of a real loss ultimately remains unprovable. Rather, the prerequisite is that, taking into account the particular circumstances of the individual case, the occurrence of a loss appears so obvious that the asset value is already diminished due to the risk of loss. Under these conditions, the conclusion of economically disadvantageous contracts may already constitute a threat to assets equivalent to a disadvantage to assets.

(3) Since the pecuniary disadvantage constitutes an independent element of the offence, standing alongside the prerequisite of the breach of duty, it must - apart from simple and unambiguous cases - be determined independently, substantiated on the basis of the usual standards of economic life and quantified.

(5) A pecuniary disadvantage may exist, on the one hand, if the profit margin granted by the asset holder is not customary in the market and therefore exceeds the value of the conclusion of the contract and, on the other hand, if the value of the financial derivative concluded falls short of the value of the payment obligation thereby discharged. For the existence of a pecuniary disadvantage in the first sense, it is not sufficient for the Bank to collect a profit margin at all; rather, this must be excessive in relation to the usual market price. The customary market price is determined by the specific temporal and local circumstances and by the respective level of trade and turnover.

Loan agreement, grant, manner, damages, business decision, project, economic interest, patent

LG Duisburg 2019

Prohibition to use evidence in case of inadmissibility of data collection by the employer by means of open video surveillance

BAG 2019

(1) If the employer was permitted to collect and use data in accordance with the provisions of the BDSG old, a prohibition of the use of evidence does not come into consideration. If this is not the case, it must be examined in the individual case whether the use of the evidence obtained in this way by the court in the individual case constitutes a violation of fundamental rights.

2) A prohibition of the use of evidence due to an unjustified encroachment on the general right of personality of the employee does not only include the unlawfully obtained evidence itself, such as the inspection of video recordings, but also its indirect use, such as the questioning of a witness about the content of the image material.

(3) Pursuant to Sec. 32 (1) sentence 1 BDSG old, data collection that interferes less intensively with the employee's general right of personality may be permissible without the existence of an initial suspicion substantiated by facts, above all in the case of open surveillance measures carried out according to abstract criteria that do not place any employee under particular suspicion and that are intended to prevent breaches of duty. Such preventive measures can already prove to be proportionate due to the existence of an abstract danger if they do not create such psychological pressure to adapt and perform that the persons concerned, when viewed objectively, are substantially inhibited in their freedom to plan and shape their actions out of their own self-determination.

Managing Director

LG Munich II 2019

The effectiveness of the power of attorney and of the legal acts performed on behalf of the party is in any case abstract and independent of the conclusion and effectiveness of a lawyer's contract.

Liability of a managing director for breach of trust and limitation period

OLG Brandenburg 2019

(1) Section 253 (2) no. 2 of the Code of Civil Procedure requires a specific statement of the subject-matter and the ground of the claim raised as well as a specific request. This also applies to an action for a declaratory judgment that suspends the statute of limitations, because these specifications delimit the subject-matter of the dispute. The plaintiff must therefore designate the legal relationship whose existence or non-existence is to be established so precisely that there is no uncertainty whatsoever as to its identity and thus as to the extent of the validity of the declaratory relief sought. In this context, the designation for the concretisation of the subject-matter of the dispute can also be made in the factual submission.

(2) In determining whether service of process has been effected "promptly" within the meaning of section 167 of the Code of Civil Procedure, omissions can therefore only be imputed to the plaintiff to the extent that it can be established that the required act would have shortened the course of the proceedings. Such delays are to be attributed to a party which he or his attorney could have avoided if the proceedings had been conducted properly. This usually applies to defects in the statement of claim, such as, inter alia, the provision of an incorrect or insufficient address of the defendant, unless the plaintiff could rely on the correctness of the address stated in the statement of claim.

3. insofar as a company pursues claims of its subsidiaries against its managing director from assigned rights, a resolution § 46 no. 8 alt. 1 GmbHG is not required because it does not concern claims for compensation arising from the formation of the plaintiff or the management.

Assumption of international jurisdiction of the family court

OLG Nuremberg 2018

1) The assumption of international jurisdiction of the family court in another family dispute pursuant to §§ 105, 267 FamFG is excluded if the international jurisdiction for the subject-matter of the proceedings is regulated by European law, e.g. by the Brussels Ia Regulation.

(2) If, after separation, one of the spouses makes a disposal of a bank account held by the other spouse in abuse of a power of attorney previously granted to him or her, a claim in tort arising therefrom shall be governed by German law if the account disposed of was held with a German bank domiciled in Germany and the transfer was made to the benefit of an account held with a German bank domiciled in Germany. This also applies if the spouses had their common habitual residence in France at the time the damage occurred, but the general effects of the marriage were governed by German law because both spouses were German nationals, Art. 4 Rome II Regulation, Art. 14 (1) EGBGB.

3. the conditions for a claim for damages for a bank account "cleared out" by the other spouse in abuse of a power of attorney granted before separation.

Examination of the prospects of success in the proceedings for the admission of an action pursuant to section 148 of the German Stock Corporation Act (AktG)

OLG Cologne 2018

(1) In the proceedings for the admission of an action pursuant to section 148 of the German Stock Corporation Act, the prospects of success of the action for which admission is sought must be examined, for which section 148 (1) sentence 2 no. 3 of the German Stock Corporation Act sets the standard.

2. the powers of the management board of an AG are not determined by the actual line of business, but by the statutory object of the company.

3. an action which is to have as its object the right of subrogation pursuant to section 88 (2) sentence 2 AktG cannot be admitted within the scope of section 148 AktG.

breach of trust by entering into swap transactions

BGH 2018

(1) The standard of unfaithful due diligence which a municipal decision-maker must observe when concluding financial transactions is concretised, inter alia, by the prohibition of speculation applicable to municipalities, which is a partial aspect of the principle of economic efficiency and economy.

(2) A financial transaction of a municipality must have a factual and temporal relationship to a specific existing or newly concluded loan agreement in such a way that the risk associated with the underlying transaction is hedged or optimised by the financial transaction in an appropriate manner.

(3) A disadvantage within the meaning of § 266, Subsection 1, StGB, may also consist, as so-called endangering damage, in the fact that the property of the injured party is concretely impaired to such an extent on account of the danger of the subsequent final outflow of assets, which is already established by the act, that this already establishes a de facto reduction in assets at this time.

Unfaithfulness of a GmbH managing director - increase of remuneration for an external service provider out of mere courtesy, violations of the BetrVG (Works Council Constitution Act)

BGH 2018

(1) There is no principle, reinforced by the offence of breach of trust, according to which increases in remuneration are prevented by the principle of economy if the person concerned is also required to provide his services at the original conditions. The principle of economy is merely the outer limit of the entrepreneur's broad scope of judgement and discretion in his decisions. His decisions, however, have to be oriented exclusively to the company's welfare. A breach of the principle of economy in breach of duty generally only occurs if an objectively unjustified and thus unreasonable consideration is granted.

2) Violations of the Works Constitution Act do not in themselves constitute a breach of duty within the meaning of Sec. 266 (1) StGB because its provisions merely serve to protect the works council and thus the employees and do not have a property-protecting character. The situation is different if - for example under the GmbH articles of association or the "Public Corporate Governance Code" - the managing director is prohibited from granting payments to the works council chairman which he could not claim under the provisions of the Works Constitution Act.

Statute of limitations for directors' and officers' liability claims

OLG Munich 2018

1. substantive res judicata of a trial judgment only means that the action with the then pending subject matter was and is inadmissible under the then given procedural circumstances at least for the reason stated in the grounds of the decision. A new action on the same subject matter of the dispute can therefore only be treated as admissible if the procedural circumstances on the point in question have changed compared to the previous action, i.e. substantive res judicata merely has the effect of blocking the repetition of an action directed at the same subject matter of the dispute and which has the same procedural defect that led to the dismissal of the action.

Claims pursuant to § 93 (3) no. 1 in conjunction with § 57 AktG as well as claims for damages due to breach of the employment contract pursuant to § 280 BGB are subject to the statute of limitations pursuant to § 93 (6) AktG. Pursuant to § 200 BGB, this period begins when the claim arises. The knowledge of the shareholders or the company of the facts giving rise to the claim is irrelevant.

The offence of breach of trust under section 266 of the Criminal Code presupposes a pecuniary loss to the person whose pecuniary interests the offender is responsible for looking after. It is necessary that a reduction in assets occurs as a result of the offence, which is to be determined in accordance with the principle of overall balancing by comparing the state of assets before and after the offence from a realistic economic point of view. A disadvantage therefore does not exist if the act simultaneously creates an increase in assets that outweighs the loss.

Inadmissible appeal in case of second-instance change from collection of third-party claim to assigned own claim

OLG Munich 2017

(1) If, at second instance, the plaintiff no longer asserts a third party's right in legal capacity, but only his own right to which he is entitled by virtue of assignment, his appeal is inadmissible because he is not at least partially pursuing the claim brought at first instance, but is merely putting forward for decision by way of an extension of the action a new claim which has not hitherto been asserted.

(2) A claim under one's own law and a claim under a foreign law are different matters in dispute, even if there is a single cause of action.

(3) In interpreting an application, no account can be taken of an intention for which there is no evidence in the procedural submission and which was therefore not discernible either to the court or to the opponent.

No repayment claims of a company due to transfers initiated by its authorized signatory

LG Munich I 2017

If an authorised signatory manages the business of a company alone with the knowledge of the managing director, the company is not entitled to a claim for repayment or reimbursement for transfers initiated by him even if the transfers were made to the authorised signatory's private account or to a company of which he is the managing director.

Prohibition of the use of evidence, counterclaim, estimation of damages, three-month period, decisions of the labour court, labour court proceedings, video surveillance, general right of personality, Bdsg, video recording, employment relationship, purchase of goods, sale of goods, stock of goods, employee surveillance, evidence, appeal proceedings, set-off, claim for compensation, shop premises

LAG Hamm 2017

Pursuant to Section 6 b (5) of the Federal Data Protection Act (BDSG), the data of an open video surveillance for the exercise of domiciliary rights and for the exercise of legitimate interests for specifically defined purposes in a publicly accessible shop shall be deleted without undue delay if they are no longer necessary to achieve the purpose or if interests of the persons concerned which are worthy of protection oppose a further storage.

2) It is not compatible with this provision if a shopkeeper evaluates the business figures after the end of a three-month period and evaluates the video recordings of the expired three-month period from the 15th of the following month because of conspicuous features that have come to light in the process, which contain complete footage of all cashier transactions of the past working weeks.

3. due to the intensity of the violation of the right of personality by the breach of data protection, there is a prohibition of the use of evidence. The video sequences in question may not be used to prove the prerequisites of a claim for damages.

Employee contributions to social security, possibility of avoidance, provisional administrator, protective measures, reservation of consent, liability risk, insolvency court

AG Hamburg 2017

(1) In order to protect the future insolvency estate and to enforce the priority of the insolvency law obligation to preserve the estate over the obligation to pay the employees' social security contributions during the insolvency payment period, the debtor's power of disposal over its assets may be restricted by order of the insolvency court pursuant to sections 270a, 21 (1) sentence 1 InsO to the effect that the debtor may only make payments on employees' social security contributions within the meaning of section 266a StGB with the consent of the temporary administrator.

(2) The prerequisite for such a protective measure is that it is suitable and necessary in the individual case in order to protect the future insolvency estate against adverse changes.

(3) The safeguarding measure is necessary in any case if the management would otherwise be forced, due to the existing conflict of duties, to choose the customary way of payment and later rescission in order to reduce its own liability risks and the payment and later rescission would disproportionately burden the liquidity of the company or a later rescission would not have sufficient prospects of success.

Effective choice of court agreement arising from a loan agreement - Determination of international jurisdiction by interpretation

OLG Munich 2017

(1) An interpretation of an agreement conferring jurisdiction under Article 23 of the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters of 30 October 2007 which would lead to a division of international jurisdiction according to the basis of the claim requires specific indications.

(2) In proceedings for interim relief, the international jurisdiction of a court may also arise from national law on jurisdiction, in addition to the courts having jurisdiction as to the substance of the matter provided for in the Lugano Convention II. In this case, however, the national rule on jurisdiction is determined by a European law barrier to be determined autonomously in so far as, when protective measures are ordered, there must be a real link between the subject-matter of the measure applied for and the territorial jurisdiction of the national court in such a way that the protective order must relate to assets that are or should be within the jurisdiction of the court seised.

(3) The dispute covered by a choice of court agreement depends on the intention of the parties, which the court seised must determine by interpreting the agreement.

(5) The concept of "tort or delict" within the meaning of Article 5(3) of the Lugano Convention II covers all actions which seek to establish the liability of the defendant for damage and which are not connected with a contract within the meaning of Article 5(1) of the Lugano Convention II.

Remuneration Request, Preliminary Insolvency Proceedings, Preliminary Insolvency Administrator, Insolvency Proceedings Opened, In Insolvency Proceedings, Previous Insolvency Proceedings, Creditors' Committee Member, Preliminary Creditors' Committee, Self-Reading Proceedings, Weak Insolvency Administrator, Insolvency Administrator Consent, Remuneration of the Insolvency Administrator, Strong Insolvency Administrator, Remuneration of the Insolvency Administrator, Weak Preliminary Insolvency Administrator, Remuneration of the Preliminary Insolvency Administrator, Insolvency Debtor, Jurisdiction of the Rechtspfleger, Preliminary Insolvency Administration, Business Continuation

LG Aurich 2017

(1) A "weak" preliminary insolvency administrator who cannot himself conclude contracts to the detriment of the estate but who is actually relieved by the delegation of tasks relating to him to third parties must disclose such delegation in his application for remuneration. If the insolvency administrator asserts a claim for an increase, he/she must - irrespective of a contractual relationship with third parties and of whether an original activity of the insolvency administrator is affected in this respect - disclose the activity of third parties, insofar as this in turn has reduced the aggravating circumstance included in the remuneration application.

(2) The insolvency administrator shall not be obliged to look after assets within the meaning of the offence of breach of trust in connection with the application for or determination of his own remuneration.

Infidelity, mutual fund companies, liquid assets, surrender value, residence, funds.

LG Frankfurt a. M. 2017

Duty of disclosure, Immediate appeal, Company assets, Disclosure requirement, Memorandum of association, Service agreement, Costs of the appeal procedure

LG Ravensburg 2017

Limitation of actions for damages in tort

ArbG Würzburg 2016

1. grossly negligent ignorance within the meaning of § 199, Subsection 1, No. 2, BGB, which is decisive for the commencement of the limitation period, presupposes a personal, serious breach of obligation on the part of the creditor.

2. it follows from the characteristic of personality that the characteristics must occur in the person of the legal or contractually determined representative of the creditor. Here, the individual circumstances are to be taken into account in the context of a possibility of knowledge, as well as the personal and professional experience of the representative.

3 The extent of the possible breach of a duty to examine is therefore to be measured according to the intensity of the indications of a claim by the represented party which are apparent to the person of the representative.

Suspension of the statute of limitations by means of an application for conciliation in connection with the capital investment cases in the event of recourse to auditors

LG Göttingen 2016

(1) The case law of the Federal Court of Justice on the individualisation of the claim in a conciliatory petition suitable for the suspension of the statute of limitations in investment advice cases is also transferable to cases of tort law claims against auditors for aiding and abetting investor deception.

(2) In particular, the requirements of individualisation established by the Federal Court of Justice for the designation of the objective of the proceedings are also of importance irrespective of whether contractual or tortious claims for damages are asserted.

Fraud and foreclosure proceedings

BGH 2016

(1) The managing board of a cooperative is guilty of breach of trust if, contrary to the articles of association, it has agreed a loan that is effective in relation to third parties without consulting other members of the board and without the consent of the supervisory board and has arranged for the loan to be paid out, even though the granting of the loan was not part of the decisions arising in the ordinary course of business that it was entitled to make alone in accordance with the content of its service contract.

(2) The judicial officer conducting the compulsory auction is regularly not subject to any misconception as to the bidder's willingness and ability to pay.

(3) Where the communication between the defendant and the addressee of the statement takes place in the context of a procedure governed by law, the content of a statement made in that context and the perception which the addressee may have of it are determined to a significant extent by the rules governing that procedure.

Defect, claim for damages, statutory non-compete, non-competition, competition, commercial trade

LAG Berlin-Brandenburg 2016

Compensation for damages, proceeds of sale of airline tickets, agency agreement, duty of care of assets, claim, procedural venue, jurisdiction, binding effect, in own name

LG Frankfurt a. M. 2016

Main proceedings, non-opening, breach of trust, breach of duty, damage assessment, extent of damage, tax evasion, real estate fund

OLG Cologne 2016

Interpretation of a clause on the expiry of "contractual claims arising from the employment relationship" in a form employment contract

BAG 2016

(1) In the case of a claim for damages by the employer against his former employee for loss of commission under an agency agreement which the principal has terminated for cause on account of misconduct also on the part of the employee, there is no causality between the breach of duty and the loss if the principal had already terminated the agency agreement without notice for cause on account of the employer's own misconduct.

(2) A court settlement concluded in the context of a dispute between the parties to a commercial agency contract concerning the validity of the termination without notice by the principal, the content of which provides that the misconduct of the commercial agent's former employee is the reason for the termination of the agency contract, is not binding in proceedings for damages brought by the employer against his former employee, subject to the latter's accession to the settlement or the effects of a notice of dispute.

Separation principle in the context of legal expenses insurance

LG Düsseldorf 2016

(1) The principle of separation, according to which the examination of the question of liability is in principle reserved for liability proceedings, does not apply in the context of legal expenses insurance. Therefore, the dictum derived from this that in cases of identity of preconditions the findings of fact from the liability proceedings are also binding for the coverage proceedings does not apply to legal expenses insurance either. This follows from the fact that legal protection under the ARB is to be granted on the basis of a risk prognosis, irrespective of how the lawsuit conducted by the policyholder ends for him.

(2) A possible loss of the policyholder in the lawsuit cannot extinguish the obligation to pay already incurred under the preconditions that the exercise of legitimate legal interests appeared to be sufficiently promising and not wilful. However, the findings made in the main proceedings may be taken into account in the coverage proceedings to the extent that, for example, an increased burden of proof for the policyholder may result.

Italy, reimbursement, burden of proof, settlement, repair costs, holiday, payment

ArbG Iserlohn 2016

Investment adviser, investment advice, investment decision, investment intermediary, breach of duty of disclosure, bank, advisory agreement, portfolio commission, plea of limitation, fixed-price transaction, fund, real estate fund, capital investment, commission transaction, party hearing, positive knowledge, prospectus, reimbursement, damages, claim for damages, commencement of limitation, limitation period, revocation

LG Hamburg 2016

Law firm, civil law partnership, opening of insolvency proceedings, cash withdrawal, third-party account for client funds, damages, breach of fiduciary duty under company law, enforcement bar under company law

LG Krefeld 2016

Conditions for investment fraud

OLG Hamm 2016

1 Misleading information is sufficient for the assumption of prospectus liability under civil law, but not for the realisation of the objective element of the offence under Section 264a (1) of the Criminal Code.

2 An incorrect advantageous statement within the meaning of Section 264a (1) of the German Criminal Code (StGB) can only exist in the case of statements which can also be taken from the prospectus itself, if the prohibition of analogy under Article 103 (2) of the German Basic Law is taken into account.

Lawyer, word mark, trade mark office, registration, set-off, breach of trust, trade mark application

AnwGH NRW 2016

(1) Measures may be imposed by the Lawyers' Disciplinary Court on a Rechtsanwalt who has been guilty of embezzlement in the exercise of his profession through the improper use of client funds and who has therefore been finally sentenced to a fine, in order to encourage him to fulfil his duties and to safeguard the reputation of the legal profession. The offence of breach of trust is particularly likely to affect the respect and confidence of persons seeking justice in the work of a lawyer.

Investment advice, declaratory goal, time limit, petition for conciliation, individualization of the claim, insolvency proceedings, capital investment, contributory negligence, non-acceptance resolution, prospectus, prospectus liability, attorney's fees, appeal, damages, claim for damages, statute of limitations defense

LG Göttingen 2016

(1) Pursuant to Sec. 3 (1) No. 1 KapMuG, declaratory objectives are inadmissible if they deal with legal questions which have already been dealt with in a whole series of recent decisions of the Federal Supreme Court and have thus been clarified by the highest courts.

(2) The case law of the Federal Court of Justice on the individualisation of the claim in a conciliatory petition suitable for the suspension of the statute of limitations in investment advice cases is also transferable to cases of tort law claims against auditors and management consultants for aiding and abetting investor deception.

(3) In particular, the requirements of individualisation set out by the Federal Court of Justice for the designation of the objective of the proceedings are also of importance irrespective of whether contractual or tortious claims for damages are asserted.

Excessive liability against the managing directors of a GmbH due to missing or insufficient insolvency protection of credit balances from partial retirement agreements

LAG Mecklenburg-Western Pomerania 2015

(1) The liability under § 7e, Subsection 7, Sentence 2, SGB IV against the organs of a legal person does not apply to the statutory provision on insolvency protection of credit balances from partial retirement contracts under § 8a, AltTZG.

Excessive liability against the managing directors of a GmbH due to missing or insufficient insolvency protection of credit balances from partial retirement agreements

LAG Mecklenburg-Western Pomerania 2015

(1) The liability under § 7e, Subsection 7, Sentence 2, SGB IV against the organs of a legal person does not apply to the statutory provision on insolvency protection of credit balances from partial retirement contracts under § 8a, AltTZG.

Excessive liability against the managing directors of a GmbH due to missing or insufficient insolvency protection of credit balances from partial retirement agreements

LAG Mecklenburg-Western Pomerania 2015

(1) The liability under § 7e, Subsection 7, Sentence 2, SGB IV against the organs of a legal person does not apply to the statutory provision on insolvency protection of credit balances from partial retirement contracts under § 8a, AltTZG.

Excessive liability against the managing directors of a GmbH due to missing or insufficient insolvency protection of credit balances from partial retirement agreements

LAG Mecklenburg-Western Pomerania 2015

(1) The liability under § 7e, Subsection 7, Sentence 2, SGB IV against the organs of a legal person does not apply to the statutory provision on insolvency protection of credit balances from partial retirement contracts under § 8a, AltTZG.

Application, claim, notice, income tax notice, company, shareholder, partnership agreement, damages, claim for damages, protective effect in favour of third parties, tax consultancy agreement, breach

LG Bielefeld 2015

consultancy agreement, investor, investment advice, assignment, issue prospectus, fund, capital investment, limited partnership participation, prospectus, prospectus information, prospectus content, prospectus liability, claim for damages, compensation for damages

LG Hamburg 2015

Excessive liability against the managing directors of a GmbH due to missing or insufficient insolvency protection of credit balances from partial retirement agreements

LAG Mecklenburg-Western Pomerania 2015

The liability under § 7e, Subsection 7, Sentence 2, SGB IV against the executive bodies of a legal entity does not apply to the statutory provision on insolvency protection of credit balances from partial retirement agreements under § 8a, AltTZG.

Claim for repayment of excessively paid directors' salaries

OLG Munich 2015

1 The managing director of a GmbH is liable pursuant to § 43 II GmbHG if he does not prevent or stop salary payments of a co-managing director to himself which are recognisable to him as being in breach of his duties.

(2) If a managing director transfers an excessive salary to himself on the basis of an invalid agreement, a claim for damages in this respect - which is recognisable to the discharging body on the basis of the rendering of accounts including all documents made accessible when exercising the due diligence required in the course of business - can no longer be asserted if the company has validly granted him discharge for this period.

3. if there is a dispute as to whether a payment made by the managing director to himself was dutiful, the company need only show that the managing director made payment in respect of a claim which may not have existed, whereas it is for the managing director to show and, if necessary, prove that he had a claim to payment.

Criminal contribution by a corporation to officers of a city that is its sole shareholder

Düsseldorf Higher Regional Court 2015

(1) For criminal liability under § 333 I StGB, there must be an agreement to do wrong in the sense of a reciprocal relationship between the advantage granted and the performance of the service.

(2) Whether there is an agreement to commit an unlawful act is a question of fact and is to be decided by way of an evaluative overall view of all the indications that come into consideration.

(3) There may be no reciprocal relationship if the board of directors of a company openly presents gifts to officials of the city that is the sole shareholder of the company in question.

Borrower, loan agreement, loan, fund, company, land register, warrant, insolvency administrator, damages, claim for damages, culpable breach of duty, affirmation in lieu of an oath

LG Cologne 2015

Defendant, imprisonment, total imprisonment, main hearing, purchase price, purchase contract, price indication, commission, commission fraud, crime, art consulting company, art consultant, art dealer, art market, art consulting, art collection, asset forfeiture

LG Essen 2015

Bankruptcy, insolvency delay, breach of trust, insolvency proceedings

LG Stuttgart 2015

investor, fund company, profit participation right, investment, folder, folder mistake, folder adhesion, payment of damages

OLG Hamm 2015

Assertion, claim for damages, liquidation of third party damages, contract, protective effect, third party, declaration of consent, assignment

LAG Hesse 2015

Claim for damages, liability, third-party liquidation, investment advice, necessity, claim for relief, declaratory judgment action, assignment, protective effect

LAG Hesse 2015

Excessive liability against the managing directors of a GmbH due to missing or insufficient insolvency protection of credit balances from partial retirement agreements

LAG Mecklenburg-Western Pomerania 2015

(1) The liability under § 7e, Subsection 7, Sentence 2, SGB IV against the organs of a legal person does not apply to the statutory provision on insolvency protection of credit balances from partial retirement contracts under § 8a, AltTZG.

Excessive liability against the managing directors of a GmbH due to missing or insufficient insolvency protection of credit balances from partial retirement contracts;

LAG Mecklenburg-Western Pomerania 2015

(1) The liability under § 7e, Subsection 7, Sentence 2, SGB IV against the organs of a legal person does not apply to the statutory provision on insolvency protection of credit balances from partial retirement contracts under § 8a, AltTZG.

Claims arising from a declaration of support against a municipality

OLG Frankfurt a.M. 2014

Teacher, grade, disciplinary action, removal from duty, rent, attorney, main hearing, rental fraud, distinguishing element, threshold, de minimis, access offense, public official, instant offense, attempt situation, school principal

VG Berlin 2014

Insurer's obligation to indemnify under a prospectus liability insurance policy

LG Munich I 2014

1) The advertising with the number of subscribers cannot be considered in isolation; this would not do justice to the overall context of the brochure. Rather, the defendant's strategy at the time must be taken into account, which was aimed at gaining or retaining as many subscribers as possible, even if these may only have generated a very small contribution to sales per capita, which is also made clear in the prospectus.

An ad hoc announcement pursuant to Section 37c (1) WpHG is untrue if its content is incorrect, i.e. if the information in the announcement does not correspond to reality at the time of its publication, i.e. if it is made-up information, exaggerations or commercially unreasonable forecasts or value judgments. An ad hoc announcement is incomplete if it does not contain all the information that the issuer would have to publish pursuant to Section 15 (1) of the German Securities Trading Act (WpHG) in order to provide the public with an accurate picture of the inside information subject to disclosure; the public must therefore not be misled.

3 The provision of Section 15 of the German Securities Trading Act (WpHG) as the connecting factor for liability serves exclusively to protect the functioning of the capital markets, but not to protect the Company.

Restitution for damages against sole proprietor who is at the same time co-managing director and shareholder of the GmbH against which a claim is made - commencement and suspension of the external audit; discussion of the factual and legal status pursuant to § 364a AO

FG Munich 2014

(1) If the co-managing director and shareholder of a limited liability company, against which a city asserts claims for damages due to positive breach of contract as well as from § 823 para. 2 BGB (German Civil Code) in conjunction with § 266 StGB (German Criminal Code), at the same time acts as a management consultant for the limited liability company as a sole trader, a provision for damages due to the threatened claim of the limited liability company as a contractual partner of the city is excluded for the sole trader if the city at no time asserts a claim for damages against the sole trader as a subcontractor and has never intended to do so.

2) A provision for damages in the sole proprietorship of the shareholder-managing director of the GmbH cannot be achieved by referring to a liability to pass through. A liability to pass through occurs exceptionally in the case of a so-called mixing of assets and only leads to the discontinuation of the liability privilege in accordance with § 13 (2) GmbHG in the case of the shareholder-managing director.

3 An interruption of the external audit lasting more than six months is irrelevant for the suspension of the expiry of the statute of limitations pursuant to § 171 para. 4 sentence 2 AO if it does not immediately follow the start of the audit.

Control of the use of funds, no reasonable suspicion, investor money, fund company, closed-end real estate fund, breach of duty, limited partner in trust, breach of trust, managing partner, complicit contribution to the crime

LG Bielefeld 2014

Obligation of the Annual General Meeting to approve the assumption of a fine for members of the Management Board by the company

BGH 2014

1. if the member of the management board of a joint stock company has at the same time violated his duties towards the company by an act which is the subject of an investigation or criminal proceedings, the general meeting of shareholders must agree to the company assuming the fine, penalty or monetary contribution.

Infidelity, pecuniary loss

OLG Cologne 2014

Managing director liability, damages, breach of trust, interest damage, abuse of power, lack of legal basis, loan repayment, limited liability company, proof of deposit

OLG Brandenburg 2014

Defendant, bank, fraud, imprisonment, main hearing, damages, crime, traffic accident, defense counsel, disbarment, suspended sentence, probation, party treason

LG Ellwangen 2014

1. on the compatibility of a prohibition to practise with a suspended sentence.

Damages, tort, computer hardware, bogus invoices, wholesale rebate, fraud, right to refuse to testify, tax evasion, bar to prosecution, recovery of damages

OLG Düsseldorf 2014

Breach of trust by entering into high-risk derivative transactions

LG Munich II 2014

(1) The holding of a power of attorney may give rise to a duty to manage assets.

(2) The duty in the employment contract to plan the finances strategically and, consequently, to manage all the financial affairs of a company may give rise to a duty to look after assets.

3. to determine the pecuniary loss caused by the conclusion of high-risk derivative transactions.

Default of acceptance, issue prospectus, fund company, property owner, property acquisition, capital investment, purchase agreement, prospectus error, damages, limitation period

LG Dortmund 2014

loan agreement, fund, partnership agreement, insolvency proceedings, purchase agreement, public prosecutor's office, fiduciary

LG Dortmund 2014

Assignment declaration, investment decision, settlement credit, approval, fund company, controller of the use of funds, prospectus error, limited partner in trust, step by step

OLG Hamm 2014

Application for insolvency, payment stagnation

OLG Brandenburg 2014

Participation, fund, GbR, company, shareholder, real estate fund, purchase price, purchase agreement, damages, claim for damages, fiduciary duty, arrest order

LG Cologne 2013

Extraordinary termination, termination of employment, employer, employee, action for unfair dismissal, criminal offence, breach of trust, competitive activity, non-competition clause

ArbG Kaiserslautern 2013

Infidelity, loan decision, bank director

LG Arnsberg 2013

1. on the allegation of breach of trust in lending decisions by members of the management board of a credit institution:

2. a breach of duty within the meaning of section 266 of the Criminal Code can be dispensed with in the case of the granting of follow-up loans - even high-risk ones - if these promise success in the restructuring of the entire credit exposure. An intent to harm is not self-evident even under problematic lending.

Unfaithfulness to the detriment of publicly traded companies - "deep sea tugboat business".

BGH 2013

The elements of the offence in § 299 I StGB restrict the circle of offenders to employees and agents of a business enterprise, so that the acceptance of an advantage by the owner of the business with regard to his own business is not covered by the elements of the offence. Since the elements of the offence are already completed when the advantage is demanded, promised or accepted, the position as an employee or agent of a business operation and thus as a suitable offender of the special offence § 299 I StGB must be present at the time of the offence.

2 The acceptance of an advantage for favours in the past is only covered by § 299 I StGB if these favours were already the subject of a wrongful agreement which was itself a constituent element of the offence within the meaning of this provision.

3. in cases where concealed bribe payments are shifted to a represented company for the benefit of the managing directors by increasing payment obligations, a pecuniary disadvantage within the meaning of section 266 of the Criminal Code regularly already lies in the fact that the payment made in the amount of the sum added to the price merely serves to finance the bribe,

(4) On the question of the extent to which damage to the assets of a limited partnership leads to a pecuniary disadvantage in this sense.

Assignment, default of acceptance, offering prospectus, fund company, founding shareholder, real estate fund, prospectus liability

LG Constance 2013

Default of acceptance, real estate fund, capital investment, prospectus liability, damages

LG Constance 2013

Assignment, investor, default of acceptance, conditional intent, offering memorandum, fund, founding partner, real estate fund, limited partner, capital investment, prospectus error, prospectus, trust agreements, step by step, tortious act

LG Constance 2013

Requirements for aiding and abetting embezzlement to the detriment of a GmbH by commercial employees

BGH 2013

(1) Payments to the managing director also cause damage to the assets of a GmbH within the meaning of Section 266 of the Criminal Code only if the payment is not matched by any consideration and the assets of the company are not released from a liability as a result of the payment.

(2) The requirements applicable to the managing director of a private limited company, according to which he is required to constantly observe the economic situation of the company and, if there are signs of a crisis, to obtain an overview of the assets of the company by drawing up a statement of assets and liabilities, and the presumption to his detriment of the recognisability of the maturity for insolvency of the private limited company cannot be transferred to a commercial employee because the latter is not an organ of the company and has no management authority.

Investor, assignment, default of acceptance, registration, issue prospectus, fund, fund company, real estate fund, capital investment, prospectus liability, prospectus, step by step

LG Constance 2013

Bending of the law, breach of trust, insolvency proceedings

LG Aurich 2013

(1) Infringement of the law may be committed at any stage of the management and decision-making of a case, in particular by failing to carry out the requisite investigation, i.e. by reaching a decision on the basis of insufficient facts, by misapplication of the rules and, finally, by abuse of discretion.

If the accused is not sufficiently suspicious of a disregard of the law pursuant to § 339 of the Criminal Code, a conviction for breach of trust pursuant to § 266 of the Criminal Code is also ruled out. This is because the element of the offence of perversion of justice has a blocking effect in such a way that a judge or other public official can only be prosecuted for other offences committed in connection with his decision if he has at the same time committed perversion of justice.

Damages, prospectus liability, fund company, trust agreement, investor, fund prospectus, distribution agreement, distribution company, bidding procedure, value retention

LG Constance 2013

Damages, prospectus liability, fund company, trust agreement, investor, fund prospectus, distribution agreement, distribution company, bidding procedure, value retention

LG Constance 2013

Damages, prospectus liability, fund company, trust agreement, investor, fund prospectus, distribution agreement, distribution company, bidding procedure, value retention

LG Constance 2013

Issue prospectus, fund, shareholder, founding shareholder, participation, investor, sole shareholder, real estate fund, notarial deed, prospectus, prospectus error, damages, trust agreements, step by step

LG Constance 2013

Assignment, investor, default of acceptance, registration, issue prospectus, fund, fund company, real estate fund, capital investment, costs of litigation, prospectus, prospectus liability, damages, step by step, intentional tort, joint and several debtor, shareholder account, financing agreement, declaration of accession, trust agreement, trust account, successor fund, limited partner, partnership interest, fund prospectus, legal successor, fund property, usurious price, market value, indemnity claim, cover note

LG Constance 2013

Damages, prospectus liability, tort, real estate fund, capital investment

LG Constance 2013

Damages, prospectus liability, default, fund company, participation, real estate fund, investor, default of acceptance, step by step, intent, principal act, tax advantage

LG Constance 2013

Damages, prospectus liability, tort, real estate fund, capital investment, trust agreement

LG Constance 2013

Limitation of actions, claim for damages, controller of the use of funds, media fund, prospectus liability, participation, decision to join, duty of disclosure

OLG Frankfurt a.M. 2013

1. on the limitation period for claims for damages against the controller of the application of funds in connection with the entry into a media fund

Justified liability claim due to a drawing damage according to § 826 BGB using an immoral guideline

OLG Munich 2013

(1) During the investment brokerage, a guide was used which had a manipulative character, because a false picture of the investment was drawn on the basis of the specific information. This is sufficient for the assumption of intent, since the damage to the investor was considered possible and was accepted with approval.

2. the conduct of the adviser was also immoral: in the interest of earning commissions through as many referrals as possible, she worked with the guide to ensure that prospective investors, misjudging the true state of affairs and underestimating the risks, were induced to invest parts of their assets in capital investments which did not have the advantages pretended in the presentation talk, and thus ran the risk of losing their assets.

Loan fraud - calculation of the pecuniary loss in the case of a loan

BGH 2013

(1) In the case of "loan evasion", there is no question of criminal liability for fraud, provided that the bank employee approving the loan was neither deceived as to the value of the collateral provided as security for the loan nor as to the creditworthiness and willingness of the borrower, but colluded with the borrower or a third party to the detriment of the bank.

(2) For the aiding and abetting intent, it is sufficient that the aider and abettor at least considers possible and approves the essential features of the principal offence, in particular its wrongfulness and direction of attack, without knowing details of the principal offence. However, an exclusively different legal classification of the principal offence is only harmless if it is not a fundamentally different offence.

(3) Whether the granting of a loan causes a pecuniary loss shall be determined by comparing the value of the loan with the repayment claim of the loan creditor at the time of the granting of the loan. The value of the repayment claim is determined by the creditworthiness of the debtor and the value of the collateral provided.

Unanimous withdrawals from achieved profit do not mean an unlawful disadvantage for the GmbH

BGH 2013

It is recognised that consensual withdrawals of profits already generated and the payment of profit advances do not in themselves constitute an unlawful disadvantage for the GmbH, even if the amounts withdrawn are booked incorrectly for camouflage purposes; however, if a profit withdrawal which is permissible in itself has harmful consequences which extend beyond the reduction in assets caused by the withdrawal, it may be deemed to be an unlawful disadvantage for the GmbH. Acting contrary to duty and an unlawful disadvantage are to be assumed if the share capital is impaired or the economic existence of the company is endangered in another way.

Insolvency administrator, insolvency proceedings, leasehold interest, share capital, finance plan loan, equity substitution, quasi-incorporation, appeal, liability for destruction of existence, contestation of intent, organ, undercapitalisation, special insolvency administrator, fiduciary duty, asset, mass liability, insolvency maturity, legal act, intent to disadvantage, restructuring attempt

Cologne Higher Regional Court 2013

Prospectus liability, closed-end real estate fund, GbR, investor, fund, abuse of power of attorney

LG Constance 2013

Assignment, default of acceptance, investor, issue prospectus, fund, fund company, real estate fund, capital investment, prospectus, prospectus liability, step by step, tort, fund participation, joint and several debtor, successor fund, founding shareholder

LG Constance 2013

Claim for damages, granting of credit, liability standard, board liability, scope of action, action in breach of duty, board liability regulation, limitation of liability, board of directors, credit line, reduction, competence rule system, hierarchy principle, binding effect, credit approval authority, credit contingent, overdraft facility, extension of commitment, overdraft approval, breach of duty, risk limitation decision, value appraisal, recoverability, credit decision, overdraft list, foreign exchange credit, residual debt discharge, insolvency estate, claim for damages, avoidance, contributory negligence, due diligence requirement, credit exposure, credit risk, contributory negligence, letter of credit lines, overall credit risk, Letter of credit redemption, contractual relationship, tort liability, breach of duty, purpose, line sharing, credit default, authority to act, guaranty, line of credit, internal liability, public service law, liability regime, lending, risk classification, risk monitoring procedures, land charge, employment relationship, recourse, share capital, shareholder loan, current account, financing requirement, liquidity bridging, collateral, directly enforceable guarantee, factoring company, letter of intent, participation agreement, due diligence, land charge deed, repayment claim, damages, letter of credit, letter of intent

Düsseldorf Higher Regional Court 2013

Breach of duty, knowledge advantage, own financial advisor

Higher Regional Court Hamm 2013

1. credit-financed real estate acquisition for tax saving purposes - liability of the financing credit institution because of a knowledge advantage obliging to the clearing-up with bad-cunning deception of the borrower over the height of the flowing selling commissions:

(2) The financing credit institution shall in any case not be liable if the purchaser is not informed by the financial adviser engaged by it when concluding the real estate and credit transactions about internal commissions accruing to the latter and the credit institution was not aware of the remuneration agreements between the purchaser and its adviser.

Damages, rental agreement, rent, rent

OLG Karlsruhe 2013

Media funds, damages, fund participation, prospectus liability, control of the use of funds, limitation period, duty of disclosure, limited partner in trust, control of the use of funds agreement, general terms and conditions, invalidity, inadmissible limitation of liability

OLG Frankfurt a.M. 2012

Unfaithfulness by taking out a cash loan by the mayor in violation of the statutes - concept of disadvantage

BVerfG 2012

(1) Apart from simple and clear-cut cases, a conviction for breach of trust requires the criminal courts to quantify the amount of the loss they have assumed and to set out its determination in an economically comprehensible manner in the reasons for the judgment. Normative aspects may be taken into account; however, these may not supersede economic considerations.

2 The interest obligations justified by a loan taken out in violation of municipal budgetary law can be assessed in a constitutionally permissible manner as a disadvantage within the meaning of § 266 I of the Criminal Code if the loan amount is economically worthless for the municipality - for example because of its concrete financial situation.

3) The "prohibition of proliferation" of the elements of the crime of breach of duty and pecuniary disadvantage.

Default judgment, joint and several liability, capital investment, reversal, trust participation, assignment, damages, prospectus liability

LG Dortmund 2012

Withdrawal of an auxiliary set-off on appeal

OLG Munich 2012

An auxiliary set-off can also be withdrawn in the appeal proceedings with retroactive effect to the first instance.

Existence and effects of a "hard internal" letter of comfort

OLG Frankfurt 2012

Settlement of void claim as breach of trust - Telekom spy affair

BGH 2012

(1) The settlement of a void claim may constitute an unfaithful breach of a duty to take care of property.

lie.

Necessary findings on the functions and competences of a managing director of a GmbH in case of breach of trust - Special circumstances in case of suspended sentence

BGH 2012

Since the purpose of the offence of breach of trust is to protect the third-party assets entrusted to the person obliged to act in trust, dispositions made in agreement with the owner of the assets are in principle not in breach of duty within the meaning of § 266.1 of the Criminal Code, unless the agreement is invalid for certain reasons.

(2) In the case of a private limited company, the owner of the assets is replaced by all of its shareholders, who must consent to the disposal. However, if a holding company is the sole shareholder of the GmbH, the latter represents the entirety of the shareholders.

(3) The denial of "special circumstances" within the meaning of § 56.2 sentence 1 of the Criminal Code may not be based on the fact that a defendant denied the offense or did not comment on it.

Non-profit status, embezzlement, fraud

OLG Celle 2012

1. alone the causation of high costs for the donation advertisement of a GmbH recognized provisionally as non-profit justifies no sufficient suspicion because of fraud to the disadvantage of the donors, if the donation advertising letters did not contain express data for the height of the costs.

2. from the permanently high cost ratio also beyond the period recognized under tax law as start-up phase cannot be concluded on a from the outset existing intention of the purpose-adverse use of the donation means, if no reference points for the fact are present that the costs for the donation advertisement were excessive and by concealed disbursements finally the personal enrichment serves.

A violation of the requirement of selflessness pursuant to § 55 AO does not constitute a violation of the obligation to look after assets within the meaning of § 266 StGB, because the norm itself does not serve the purpose of protecting the assets of the GmbH recognised as a non-profit organisation.

No guarantor obligation of AG board member towards third parties to prevent financial losses

BGH 2012

(1) The position as managing director of a GmbH or member of the management board of a stock corporation alone does not give rise to a guarantor's duty vis-à-vis outside third parties to prevent damage to their assets. The duties arising from the position as a corporate body to properly manage the company's business under § 43 I GmbHG, § 93 I 1 AktG, which also include the duty to ensure the lawfulness of the company's actions, exist in principle only vis-à-vis the company and, in the event of their violation, give rise to claims for damages in principle only for the company.

Invalidity of the guarantee of a GmbH for liabilities of third parties

LG Munich I 2011

If the managing director of a GmbH commits an act of breach of trust by assuming a guarantee for third party liabilities at the expense of the company, the guarantee is void, since only the invalidity of the civil law transaction can prevent the acts of breach of trust, in particular in cooperation with the contracting party, from ultimately having no consequences under civil law and from continuing to damage the assets of third parties.

(2) In the case of a violation of a prohibition law, cure pursuant to § 141 BGB is not possible as long as the prohibition exists.

Contestation in bad faith after concealment of a Ponzi scheme

BGH 2011

1. a pyramid scheme practised by the policyholder must be disclosed when taking out a securities insurance policy.

(2) A party who merely assumes the existence of facts may assert them as established if there are sufficient indications for the correctness of the allegation. Such evidence only becomes inadmissible in the case of obvious arbitrariness or abuse of rights.

(3) An exclusion of avoidance on grounds of fraudulent misrepresentation at the time of conclusion of the contract agreed in advance shall be invalid if the misrepresentation was perpetrated by the business partner himself or by a person who is not a third party within the meaning of Section 123 (2) of the German Civil Code. This also applies to the relationship between the insurer and the insured persons of an insurance for third party account.

Criminal liability of a GmbH managing director for bankruptcy and breach of trust

BGH 2011

(1) The Senate intends to decide: If the managing director of a GmbH sets aside components of the company's assets when the company is threatened with insolvency, he is liable to prosecution for bankruptcy even if he does not act in the interests of the company in doing so.

The Senate inquires of the other criminal senates whether contrary case law will be upheld.

Infidelity, Company, Management

LG Münster 2011

Breach of trust to the detriment of a limited partnership - requirements for documentary evidence and the introduction of documents in accordance with the rules of procedure

BGH 2011

Within the framework of § 266 StGB, damage to the overall assets of a limited partnership is only significant insofar as it simultaneously affects the assets of the partners. Accordingly, the question of the occurrence of a disadvantage is not to be based on the partnership alone, but on the assets of the individual partners.

If "bank files" containing a large number of account balances, account statements and individual entries have been "made the subject of the main hearing and taken into judicial inspection" according to the minutes, they have neither been formally read out as documents pursuant to § 249.1 sentence 1 of the Code of Criminal Procedure nor have they been introduced by way of the self-reading procedure and have therefore not been introduced into the main hearing in accordance with the rules of procedure.

However, the consent of the shareholders does not necessarily mean that the offence of breach of trust is excluded in every case.

BGH 2011

(1) The consent of the shareholders does not in every case exclude the existence of the offence of breach of trust.

Damages, insolvency proceedings, loan agreement, consultancy agreement, repayment claim

LG Cologne 2011

Insolvency administrator, assets, insolvency table, creditor claims, purchase price claim, capital maintenance liability

OLG Koblenz 2011

Insured event in cash-in-transit insurance

BGH 2011

Cash-in-transit insurance is a type of property insurance that insures cash, but not book money or banknotes, against typical transport risks. The insured event presupposes material access to the goods in transit in the sense of misappropriation. Damage resulting from embezzlement is not insured.

Insured event in a cash-in-transit insurance policy

BGH 2011

1. the definition of an insured event in a cash-in-transit insurance policy where the terms and conditions of the contract of carriage do not exclude the policyholder from first crediting cash transported to an account in his name upon delivery.

(1) If insurance contracts are typically concluded with and for a certain group of persons with business experience, the interpretation of terms and conditions shall also be based on their possibilities of understanding and interests.

2 The insured event in the case of valor transport insurance presupposes material access to the goods in transit.

Unsuccessful appeal against conviction for breach of trust inter alia for lack of violation of substantive law

BGH 2010

1 The authorized representative according to § 54 HGB is a power holder in the sense of § 266 I Alt. 1 StGB.

2. the commission of breach of trust by an agent who, within the scope of his power of representation, manipulates commercial transactions in order to obtain commission payments to which he is not entitled.

Damages, dispute value complaint, intentional offence, complaint, traffic accident

OLG Karlsruhe 2010

Infidelity, fraud, violation of the secrecy of telecommunications

LG Bonn 2010

Avoidance in insolvency, composition, prejudice to creditors, ancillary intervention

OLG Jena 2010

Tendering, funding advice, breach of trust, trust agreement, aid, closed-end real estate fund, tax advisor, investment plan, evidence procedure

KG 2009

Unfaithfulness to the detriment of group-dependent GmbHs through loan claims in favour of the group parent company

BGH 2009

1. on the breach of duty in the case of acts of breach of trust to the detriment of group-integrated GmbHs with the consent of the sole shareholder.

2. requirements for the findings on the asset-damaging over-indebtedness of group-dependent companies through the granting of loans in the case of central cash management.

(3) It must then be established by what actions in detail influence was exerted on the various loans granted by the subcompanies, at what point a damaging threat to the existence of these companies existed and whether and at what point the person acting was aware of this.

asset forfeiture, lawyer, embezzlement

OLG Hamm 2009

(1) A lawyer's failure to deposit client funds in an escrow account does not constitute a breach of fiduciary duty and does not result in a disadvantage within the meaning of § 266 of the Criminal Code only if he is fully willing and able at any time to pay out a corresponding amount in full from his own liquid assets.

(2) According to the established case law of the Federal Court of Justice (BGH), a threat to assets equivalent to damage is deemed to exist if the threat already means a deterioration of the current financial situation from an economic point of view.

Managing director remuneration, de facto employment relationship, sole shareholder, municipality

OLG Brandenburg 2009

Insolvency, asset purchase agreement, avoidance, intent to disadvantage, cash management, liability for destruction of existence

LG Gera 2009

The duty of loyalty generally prohibits the managing director from taking advantage of business opportunities that are due to the company as a concealed personal transaction.

LG Wiesbaden 2009

On the basis of the provisions in §§ 35, 37, 43 GmbHG, a co-director is obliged to actively pursue the purpose of the company within the framework of the requirements set by the shareholders, i.e. to manage the company in this sense. In addition, he/she has duties of cooperation in relation to the other bodies of the company and, last but not least, duties of loyalty, according to which the interests of the company are to be promoted over and above the management responsibility or, in any case, consideration is to be given to them.

In the English-speaking world, CEO is the designation for the sole managing director or board member of a company or the chairman of the management or board of directors. For persons working in German companies, the designation CEO is only an addition and has no special legal significance as the legal German designations for management have.

(3) The offence under section 266 of the Criminal Code consists of any property-relevant act by which the offender violates the duty to look after property incumbent upon him. There must be an internal connection between the duty to look after assets and the offender's actions. In addition to acts of disposal, all other acts of a legal or factual nature are covered, which can also be committed by omission, for example if the required intervention is omitted.

(5) A relevant pecuniary disadvantage occurs whenever the breach of trust leads to a reduction of the total value which is not compensated by an increase.

(6) Whether a pecuniary disadvantage has occurred must therefore in principle be examined by means of an ex ante comparison of the entire assets before and after the disputed disposition from an economic point of view. A disadvantage is regularly lacking if value-reducing and value-increasing factors, which can also include profit expectations, cancel each other out.

Damages, prospectus, debt securities, capital market information, replacement

Düsseldorf Regional Court 2009

abuse of a bank account power

OLG Brandenburg 2009

Claims for damages, fund participation, breach, pre-contractual duty to inform, duty to inform

OLG Munich 2009

Criminal liability for bankruptcy of a GmbH managing director - "theory of interest

BGH 2009

1. on the criminal liability of the manager of a limited liability company for bankruptcy by setting aside company assets and on the relationship between bankruptcy and the property offences in such cases.

Revision, unfoundedness, breach of trust, pecuniary disadvantage, limited partnership, transfer, consideration, over-indebtedness

BGH 2009

Formation of hidden funds as embezzlement - Siemens case

BGH 2008

(1) The very act of withdrawing and withholding substantial assets while setting up concealed funds by executives of a commercial enterprise leads to a definite disadvantage within the meaning of § 266 I StGB; the intention to use the money in the economic interest of the trustor is irrelevant. - Siemens case

2. 299 II StGB in the version applicable until 29.8.2002 only covered such acts in foreign competition which were also directed against German competitors.

3) The concept of public official under Article 2(1)(2) of the Law on Combating International Bribery is not to be interpreted in accordance with the relevant national legal system, but autonomously on the basis of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions of 17 December 1997.

Wind turbines, contract for joint grid connection, managing director

LG Paderborn 2008

Damages, stock exchange futures, duty of disclosure, account management agreement, kick-back agreement, churning

Düsseldorf Regional Court 2008

Stock exchange futures, damages, securities transactions, brokerage commissions, churning

LG Meiningen 2008

due diligence, services, bank, defendant, prosecution, company, securitization, board of directors, commodity, supply, timing, consolidation, decline, refinancing facilities, television channel

Düsseldorf Regional Court 2008

Damages, breach of trust, debt collection, management, limitation period

OLG Dresden 2008

Offsetting, shareholders' meeting, illness

OLG Brandenburg 2008

Damages, solicitation, deletion, fiduciary duty, freedom of occupation, breach of contractual duty

ArbG Düsseldorf 2008

Agreements with business partners - contact brokerage fee

OLG Munich 2008

Capital substitution, infidelity

BGH 2008

According to the established case law of the Federal Supreme Court (BGH), the managing director commits a breach of trust to the detriment of the GmbH if he pays out to the shareholders the assets required to maintain the share capital, which is withdrawn from the shareholders' power of disposal in the interest of the creditors. This also applies if the share capital has already been lost and the GmbH is overindebted.

If the shareholder has granted the GmbH a loan instead of equity capital - or has left this standing - which is to be qualified as replacing equity capital because it replaces lost share capital or covers an over-indebtedness going beyond this, there is a prohibition of repayment within the meaning of § 30 I GmbHG. An intentional violation of this repayment prohibition also constitutes criminal liability for breach of trust.

No liability of the bank for embezzlement by an executor of a will

OLG Koblenz 2008

1. a bank is only liable for embezzlement by an executor of an heir's account if there are serious grounds for suspicion.

2) Section 2205 sentence 3 of the Civil Code requires a direct effect on the heir's assets. The provision is therefore not applicable vis-à-vis an account-holding bank if the executor accesses the heir's credit balance.

Damages, losses, stock exchange futures transactions, brokerage house, place of jurisdiction, international jurisdiction, law of the place of the offence, risk disclosure

Düsseldorf Regional Court 2008

Acts of embezzlement in capital investment transactions and duration of proceedings in economic criminal cases

BGH 2008

1. on intent and pecuniary prejudice in cases of breach of trust by taking risks for another's property in breach of duty.

2. on scheduling in white-collar criminal cases.

(3) Also in view of the new case law on compensation for procedural delays contrary to the Convention, the possibility should be considered in transitional cases of leaving it at the sentencing stage with a mitigation made by the Trial Chamber.

Business loan, land charge, real estate, contributory negligence, breach of duty, claim for damages, pre-financing

LAG Cologne 2008

On the conditions of employee liability of a bank employee charged with preparing templates for business loans for the pre-financing of real estate.

Abusive criticism of a condominium owners' meeting

OLG Munich 2008

failed investment, prohibition order, BaFin, immorality, trust agreement, insolvency proceedings, damages

OLG Stuttgart 2008

Employment contract, allegation of pension payments in breach of duty, tort, duties as managing director of a GmbH, occupational pension, private life annuity, burden of proof

Düsseldorf Higher Regional Court 2008

Prospectus liability, duty of disclosure, limited partner in trust, prospective investors, fund company, film fund, use of fund resources, soft costs

OLG Munich 2008

If the limited partner in trust of a film fund, through which the investors participate as future trustors, is aware that the actual use of the fund's resources for so-called soft costs deviates from the information in the issue prospectus, it must inform prospective investors of this. Such a deviation exists if a sales company receives remuneration in excess of the intended commission for equity capital procurement, but it is neither contractually regulated which concrete counter-performance it has to provide for this, nor can the other services of the sales company cited to justify the additional payments be clearly distinguished from equity capital procurement.

(2) There is a factual presumption that the investor would have decided against the investment if he had been properly informed about the use of the funds. It is incumbent on the limited partner in trust to shake this presumption of a causal connection between the breach of the duty to inform and the investment decision.

The general partner of the investment company is also obliged to inform prospective investors. It cannot successfully argue against its liability that there are no contractual relationships between it and investors.

Tax evasion, embezzlement, trade union, management consultancy, employee training, slush funds, accounting, fraud, corporate income tax, trade tax, value added tax, operating expenses, expenses, sports claim, company constitutional body

Nuremberg-Fürth Regional Court 2008

Valoren insurance, burden of proof

LG Cologne 2008

(1) Under marine insurance law, the Insured - or the Assured, if the latter takes action against the Insurer - bears the burden of proof and presentation of the occurrence of the insured event. In the case of marine insurance with all-risk cover, it is sufficient for the policyholder/insured to prove that the loss or damage occurred during the insured period as a result of some peril: proof is required of the handover of the goods to the carrier and of the loss of the goods during the insured transport.

Trust limited partner, participation, GmbH, compensation, restitution, profit distribution, snowball system, active legitimacy, merger, prospectus liability

Düsseldorf Regional Court 2008

Appeal, avoidance, agreement, revocation, sole shareholder, insolvency administrator, shareholders' meeting, insolvency avoidance, counterclaim, insolvency proceedings

OLG Cologne 2008

Disloyalty, breach of duty, endangerment of assets, managing director, GmbH

LG Paderborn 2008

Prospectus liability, prospectus responsibility, statute of limitations, active legitimation

OLG Dresden 2008

loss-making options transactions, US stock exchanges, securities transactions, law of the place of the offence, kick-back agreement, expense avoidance, damages

Düsseldorf Regional Court 2008

Power of attorney, claim for damages, examination of defendant

LAG Rhineland-Palatinate 2008

Damages, film funds, prospectus liability, limitation period, prospectus errors

LG Munich I 2008

Exchange futures, damages, international jurisdiction, arbitration agreement, choice of law clause, arbitration clause, options transaction, investment brokerage, churning

Düsseldorf Regional Court 2008

Severance pay, interim relief, claim for damages, economic disadvantages, hardship

Düsseldorf Higher Regional Court 2008

Claims for damages for the failed engagement with a limited liability company

OLG Nuremberg 2007

Damages, breach of duty, initiator position, prima facie liability, prospectus liability, control of the use of funds, omission, fraudulent intent, deception, duty of asset management

OLG Nuremberg 2007

Damages, prospectus, prospectus liability, investor, advertising, limitation of liability

OLG Nuremberg 2007

Tax advisor liability, claim for damages, positive breach of contract, commission promise, share acceptance declaration

Stuttgart Higher Regional Court 2007

Investment, prospectus liability, short-fall, damages, limitation period

LG Munich I 2007

Personal liability of the GmbH managing director due to fictitious insolvency protection of a credit balance from part-time work for older employees

BAG 2007

If the managing director of a GmbH employer pretends that the collectively agreed insolvency protection of a credit balance from a partial retirement employment relationship has taken place, this can justify his liability for damages according to § 823 II BGB in conjunction with § 263 StGB. He may have committed fraud within the meaning of § 263 I StGB by deceiving the works council to the detriment of an employee if the works council was entitled to demand proof of insolvency insurance on the basis of a works agreement.

The managing director is then personally liable pursuant to § 823 II BGB in conjunction with § 263 I StGB for the damage incurred by the employee due to the non-fulfilment of his earned and unsecured credit balance in the insolvency. The occurrence of such damage is to be expected on a regular basis; because the credit balance earned before the opening of insolvency proceedings is only adjusted as an insolvency claim pursuant to § 108 II InsO.

Personal liability for failure to provide insolvency protection for a credit balance

BAG 2007

Imprisonment, investment intermediary, investment decision, aiding and abetting, capital investment

OLG Bamberg 2007

Bankruptcy, Managing Director, Foreign Company

AG Stuttgart 2007

(1) The managing director of a limited company under English law is also a capable perpetrator of a bankruptcy offence under section 283 of the Criminal Code. Legal entities under foreign law also fall within the scope of the provision.

2. a legal person under foreign law which has its de facto principal place of business in Germany is obliged to draw up balance sheets, and its criminally responsible persons within the meaning of section 14 of the Criminal Code shall be liable to prosecution under section 283(1) no. 7 of the Criminal Code in the event of an intentional or negligent breach of this obligation if the other conditions of the provision are met.

Loan, consent

OLG Hamm 2007

Bank, guarantee, compensation, loan agreement

LG Krefeld 2007

Damages, trust agreement, prospectus liability, control of the use of funds, culpa in contrahendo, claim for rescission

OLG Munich 2007

Stock exchange futures transactions, choice of law clause, cic, consultancy agreement, need for clarification, kick-back agreement

Düsseldorf Regional Court 2007

On the criminal liability for maintaining the business operations of an over-indebted takeover group by means of a "snowball" system

LG Hildesheim 2007

1. managing directors and branch managers of a cash-in-transit company are obliged to look after the property interests of the company's customers.

2) The misuse of customer funds in an ongoing "snowball system" does not yet constitute a pecuniary loss, but it does constitute a concrete threat to assets equivalent to the loss.

If the managing director of a money transport company sets the framework conditions for and determines the regular procedures of a "snowball system" operated over a period of years, he is to be convicted as an indirect perpetrator by virtue of organisational control of a criminal offence of breach of trust consisting of a multitude of legally concurrent individual acts.

5. telecommunications connection data may be used for the investigation of not insignificant criminal offences of embezzlement even if the requirements of Section 100a of the Code of Criminal Procedure are not met.

investment product, capital investment, fund, false information, liability potential, warning, urgency, week, legal advice, injunction, press release

LG Hamburg 2007

Insolvency estate, health insurance, shareholder-director, tax advisor, different treatment, private health insurance

AG Gera 2007

A GmbH shareholder-director who, in the crisis of the GmbH, makes a payment from the company's assets in the amount of the nominal value of the land charge to a third party who has created a land charge to secure bank liabilities of the GmbH, for which the shareholder-director has also guaranteed vis-à-vis the bank, commits the offence of bankruptcy, not breach of trust or favouring creditors.

Damages, breach of duty, prospectus, investment, limitation of liability, prima facie liability, control of application of funds, fraud, omission, assignment

OLG Nuremberg 2007

Damages, breach of duty, sales prospectus, investment, fraudulent intent, deception, assignment, prospectus liability, control of the use of funds, third party liability, joint responsibility

OLG Nuremberg 2007

Search warrant, late filing of insolvency, fraud, breach of trust.

LG Mühlhausen 2007

immediate appeal, breach of trust, GmbH, share capital, new evidence, over-indebtedness, calculation of damages

OLG Schleswig 2006

Severance pay, breach of duty, damages

OLG Naumburg 2006

Damages, breach of duty, law firm, acquisition of equity funds, incorrect advice, asset management agreement, statute of limitations defence, bank, risk of total loss

LG Düsseldorf 2006

Partial retirement, other law, violation of protective law

BAG 2006

Custody agreement, indemnity claim, deposit, cash, damages, duty of care of property.

LG Memmingen 2006

Damages, breach of trust, perpetration, participation, managing director, duty of care of assets, ticket sales, travel agency, tort law

OLG Frankfurt 2006

No claim for damages under a contract for the benefit of third parties, under prospectus liability and in tort

LG Nuremberg-Fürth 2006

Claim of the silent partner against the founding shareholder for repayment of his capital contribution

OLG Frankfurt 2006

1. the dormant partner has a claim against the founding partner pursuant to §§ 823 II BGB, 263 StGB for repayment of his capital contribution if the company has been driven into insolvency in a planned manner.

Infidelity - Controlling influence of the backer on the design of the sales concept as an instigating act

LG Flensburg 2006

If a seller of new vehicles assures his customers with regard to the payment of almost the entire purchase price into an account with his house bank designated as a "special account" that this amount will be used "only for the fulfilment of the purchase contract", this constitutes the establishment of an independent contractual obligation which precisely serves the pecuniary interests of the buyer, in the event of the breach of which the seller is liable to prosecution for breach of trust due to the improper use of the money.dominant influence of the backer on the structuring of the sales concept as an act of instigation.

Compensation for damages in connection with the acquisition of profit participation rights of the now insolvent GmbH

Nuremberg-Fürth Regional Court 2005

purchase price, defendant, bank, shares, imprisonment, loan agreement, defendant, loan, pre-trial detention, AG, arrest warrant, sentencing, general meeting, reporting, German law, Co KG, legal entity

Duisburg Regional Court 2005

Allegation of breach of fiduciary duties under stock corporation law - Mannesmann/Vodafone

BGH 2005

Damages, payments, taking of evidence, companies

LG Bautzen 2005

Liquidation of third party damages, liability, company, contract, contract with protective effect in favour of third parties, distribution agreement, management agreement

LG Heilbronn 2005

Damages, Losses Options Transactions, US Stock Exchange, Revocation

Düsseldorf Regional Court 2005

Personal liability due to inadequate insolvency protection of a value asset

BAG 2005

Personal liability for failure to provide insolvency protection for a credit balance

BAG 2005

Tortious liability of de facto GmbH managing directors

BGH 2005

(1) For the tortious liability of a person as de facto managing director of a GmbH, it is necessary that the person concerned, according to the overall appearance of his appearance, has taken the fate of the company - beyond the internal influence on the statutory management - decisively into his own hands by his own actions in the external relationship, which have a lasting effect on the activity of the legal management body.

Defendant, award of contract, tender, official, result of the taking of evidence, driver's licence, total custodial sentence, custodial sentence, public prosecutor's office, unity of offence, defence counsel, remuneration for work, payment

LG Cologne 2004

Loan agreement, security, assignment, rental income, rescheduling, disgorgement, attorney escrow account, accountability, use

LG Hamburg 2004

Agency agreement, damages, "letterbox company", cheque payments

LG Cologne 2004

embezzlement, fraud, specialist in enforcement law, company reorganization, insurance contracts

LG Düsseldorf 2004

Defendant, discontinuation of proceedings, admission of the defendant, custodial sentence, result of the taking of evidence, damages, prosecution, state of the art, pre-trial detention, defense counsel, workman's compensation

LG Cologne 2004

Personal liability of the managing director due to omitted insolvency protection of value credits from existing partial retirement agreement

LAG Hamm 2004

Insofar as collective bargaining or statutory provisions establish the employer's obligation to secure credit balances from the performance of partial retirement for the event of insolvency, these do not constitute a protective law within the meaning of § 823 II BGB. A personal liability of the GmbH managing director for the insolvency-related loss of credit balances is therefore excluded.

Entitlement to compensation for losses from commodity futures and options transactions

BGH 2003

Naming, series of articles, investigation, violation of personality rights

LG Ansbach 2002

Third party debtor, claim for damages, set-off, trust agreement, breach of trust, pecuniary loss, lawyer

Cologne Higher Regional Court 2001

Protection of a dependent GmbH against interference by its sole shareholder

BGH 2001

The protection of a dependent GmbH against interventions of its sole shareholder does not follow the liability system of the group law of stock corporation law , but is limited to the preservation of its share capital and the guarantee of its protection as a going concern, which requires an appropriate consideration of the GmbH's own interests. Such consideration is lacking if the GmbH can no longer meet its liabilities as a result of the intervention of its sole shareholder.

(2) If the sole shareholder causes the GmbH dependent on him to contribute its liquid assets to a grouped liquidity network controlled by him, he has a duty, when disposing of its assets, to give due consideration to its own interest in maintaining its ability to meet its liabilities and not to jeopardise its existence. If he fails to comply with this obligation, he may be guilty of a breach of trust within the meaning of section 266(1) StGB.

Important reason for dismissal of employee described as "moron" or "arrogant snob"/claim for damages for breach of non-competition clause in employment contract.

LAG Saxony 2001

The claim for breach of the non-competition clause in the employment contract presupposes that the employer has undoubtedly argued that an extraordinary termination of the employee without notice declared prior to the incriminated breach is invalid.

Pre-trial detention, arrest warrant, continuation of detention, risk of absconding, inducement to abscond, breach of trust

KG 2000

OLG Dresden: Violation of the duty of asset management by liquidator

 1999

(1) A liquidator with sole power of representation is authorised to dispose of another person's assets and in doing so looks after another person's property interests. However, he abuses his duty to look after assets if, contrary to a fee agreement signed by him, he allows A-account payments to be transferred to him without the necessary consent.

2 A disadvantage within the meaning of § 266 I StGB does not exist in principle if the offence itself at the same time gives rise to an increase in assets which outweighs the loss, unless something else results from the economic objectives and needs of the person concerned.

(3) A compensatory increase in assets in the sense of an equalization of benefits does not exist if the payment - in breach of duty - of the liquidator from the assets of the aggrieved party has redeemed claims which are not due or if the aggrieved party has thereby been deprived of the possibility of determining whether and how the further liquidation proceedings are to be conducted.

Defence counsel, application for restitutio in integrum, statement of grounds for revision, addition of prejudice, assignment agreement, partnership agreement, prohibition of self-dealing

BayObLG 1999

Right of attachment, liquidator, surrender, right of retention, fee claim, adjustment clause, frustration of execution

KG 1998

Loan, reimbursement of expenses, assignment, self-disclosure, benefit sharing, loss event

LG Mönchengladbach 1997

Claim for equalisation of gains, application for restitutio in integrum, application by the defendant, complaint, care, grant of legal aid, period of marriage, claim for damages, separation, judgment by default, restitutio in integrum, restitutio in integrum, equalisation of gains, proceedings for equalisation of gains

Regional Court of Cologne 1997

Risk of absconding, arrest warrant, risk of collusion, pre-trial detention

Cologne Higher Regional Court 1996

Compensation, general power of attorney, breach, asset management mandate, asset management, asset dispositions

OLG Cologne 1995

Corporation, acts of embezzlement and fraud to the detriment of the corporation, infringement of the rights of a small shareholder, action to compel a lawsuit

OLG Braunschweig 1992

1. the small shareholder of a large public limited company is not injured by acts of embezzlement and fraud to the detriment of the company within the meaning of section 172 of the Code of Criminal Procedure.

2. a shareholder is not a party in breach of section 400 (1) no. 1 AktG if the incorrectly answered question of another shareholder concerned information provided to the applicant by the management board itself.

(3) In proceedings to compel an action to be brought, an investigation may exceptionally be ordered if the public prosecutor had previously discontinued the proceedings without any investigation.

Assignment, effectiveness, deposit proceedings, claim for reimbursement of expenses, time of assignment, share, obligation to purchase, duty of managing director

Cologne Higher Regional Court 1992

Damages, plundering, company, breach of duty of care, intent, repayment claim, share, freedom of design, credit protection, business property, intent to injure, shareholder, bank, credit transaction, dangerousness, good faith, knowledge advantage, investigation, value, need for protection, credit note, company

OLG Hamm 1992

Damages for breach of competition, limitation period

BAG 1990

embezzlement, lawyer, pecuniary disadvantage

Karlsruhe Higher Regional Court 1989

no short statute of limitations for breach of trust

LAG Baden-Württemberg 1989

Claims for damages of the principal against the vicarious agent due to unlawful competitive activity are not subject to the short statute of limitations as far as they result from § 823 para. 2 BGB in connection with § 266 StGB. § 266 StGB, are not subject to the short limitation periods of § 61 para. 2 HGB.

No duty of care for assets of a member of the management board with regard to the bank's profit skimming claim

 1988

The duty of care for the assets of the member of the management board of an AG does not extend to an existing right of entry of the AG towards him.

(1) If the Bank has acted merely as a commission agent, a claim by the Bank against its Management Board for the surrender of the profit amounts cannot be based on section 667 of the German Civil Code. In this case, he did not obtain them from a transaction on behalf of the Bank, but in his capacity as a member of a group of persons which itself concluded its own transactions and in so doing merely engaged the Bank as an intermediary.

In this constellation, § 687 (2) sentence 1 in conjunction with § 681 sentence 2 and § 667 of the German Civil Code (Bürgerliches Gesetzbuch - BGB) cannot be used as a basis for a claim, since the transactions from which the defendant generated the profits do not represent outside transactions, not only subjectively but also objectively with regard to him. In this case, however, a "right of subrogation" of the stock corporation pursuant to § 88, Subsection 2, Sentence 2, German Stock Corporation Act, could come into consideration.

(4) Even if the relationship of a member of the management board to the company as a whole is a fiduciary relationship, not every obligation arising on the basis of such a relationship or in connection with it falls without further ado within the scope of those obligations for the benefit of third parties, the breach of which gives rise to the tort of breach of trust.

(5) The duty of loyalty does not require the conclusion of prohibited transactions. If a transaction violates the prohibitions enunciated in Art. I No. 1 lit. c and d MRG 53, an omitted increase in assets would not constitute damage in the legal sense.

Conviction for embezzlement by depriving the company of funds for private purposes by means of fictitious invoices

LG Munich I 1988

Securities as a means of compensating for sums of money withdrawn

BayObLG 1965

a) Whether a savings bank manager who finances personal share speculation with savings bank funds by arbitrarily granting himself loans for the amounts required for the respective purchase of the shares and who repeatedly covers these loans in whole or in part with the proceeds from the sale of the shares causes a disadvantage to the savings bank depends on whether he keeps the liquid funds required for compensation available at all times.

b) Securities may only be treated as liquid assets to the extent that they offer sufficient security. In the case of shares, such security is, at any rate in the case of savings bank transactions, only given up to the amount of the lending limit specified in the savings bank regulations; this limit, and not the market value, is decisive for the question of cover.

c) If the cover funds are insufficient, the risk of a fall in the share price between the purchase and sale of the shares constitutes a threat to the assets of the savings bank and thus a disadvantage within the meaning of Section 266 of the German Criminal Code.

acquittal for want of intent

BGH 1959

On the interpretation of the criminal offence of breach of trust, which is to be regarded as a protective law within the meaning of the law of torts

BGH 1953

1) On the interpretation of the criminal offence of breach of trust, which is to be regarded as a protective law within the meaning of the law of torts:

(2) (1) The acceptance of renewal bills of exchange without the return of the first bills of exchange regularly gives rise to a fiduciary duty on the part of the drawee to use the renewal bills of exchange for the timely raising of the funds required for the redemption of the first bills of exchange.

3.2 The legal authority conferred on the holder of the bill of exchange by the presentation of the renewal bills of exchange to extend the liability of the bill of exchange giver by a loss of defenses of the bill of exchange giver associated with the transfer of the bills of exchange is equivalent to the authority to "obligate another" for the purposes of the offence of breach of trust. This power may be abused by improper use of the renewal bills.

5.4 The bill of exchange giver is usually already disadvantaged by the fact that his right to separate and immediate use of the discount proceeds for the purpose of redeeming the first bill of exchange is endangered by leaving the proceeds in the current account of the bill acceptor. This applies all the more if the account has a debit balance or if it is exhausted in favour of other payment purposes.

6. 5. a subsequent procurement of funds to cover an interim loan taken out for the purpose of redeeming the first bill of exchange does not undo the previously completed breach of trust.