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    Deus Maladiq's Avatar
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    I am currently researching penal law and I am curious about the law of other states.

    @Foobar: the first thing I noticed when I started reading a translation of the German Penal Code were these two definitions:

    Section 242 Theft

    (1) Whoever takes moveable property not his own away from another with the intent of unlawfully appropriating the property for himself or a third person, shall be punished with imprisonment for not more than five years or a fine.
    Section 246 Misappropriation

    (1) Whoever unlawfully appropriates moveable property of another for himself or a third person, shall be punished with imprisonment for not more than three years or a fine if the act is not subject to more severe punishment under other provisions.
    The two definitions seem identical. Is it a translation fault, or am I missing something?

    Also: article 246 (2) says:

    (2) If in cases under subsection (1) the property was entrusted to the perpetrator, then the punishment shall be imprisonment for not more than five years or a fine.
    Is the translation mistaking "possession" with "property"? Shouldn't it be "if the possession was entrusted to the perpetrator?


    Last question: in the Romanian Penal Code we do not have more or less criminal offenses, we only have infractions. We have an infraction called "abuse of trust", which refers to the situation where a civil legal document concerning a movable is in action between two or more parties, granting the physical possession of the good to another person, and this person uses the good in ways which he is not entitled by the contract or appropriates it. Is there a correspondent in the German law for this infraction?
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    Metasyntaktische Variable  foobar's Avatar
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    Quote Originally Posted by Maladiq View Post
    The two definitions seem identical. Is it a translation fault, or am I missing something?
    You are missing something . §242 (theft) is like a more severe form. It means that you have to take something from someone else. You have to break someone else’s possession, so to speak. §246 does not need that.

    For instance, if I find a mobile phone on the street and take it for myself, that’s 246 (misappropriation/trover). It was in nobody’s possession at the time. Or if you lend me your mobile phone and I don’t return it, that’s misappropriation, too. You gave it to me willingly. But if I pick up a mobile phone from a shelf in a store that sells them, that’s 242 (theft). Because I have taken it out of someone else’s custody. And while we’re at it: If I even use force or threaten to hurt or kill you, it becomes robbery (§249).

    Is the translation mistaking "possession" with "property"? Shouldn't it be "if the possession was entrusted to the perpetrator?
    Well, in this case, property is not meant as a status (like ownership) but as a reference to the good in question itself. Like you would say “Get off my property!” when you want someone to leave your lawn. So the translation is correct but it seems you did not account for all possible meanings of the term.

    Last question: in the Romanian Penal Code we do not have more or less criminal offenses, we only have infractions.
    Interesting. We differ between “Ordnungswidrigkeiten” (infractions) which are not considered crimes. They’re mostly minor law violations (like speeding) that can be handled by paying a fine. “Vergehen” (misdemeanour) are minor crimes. And then “Verbrechen” (felony) which are crimes that are punishable by no less than one year in prison. The category an offence falls into affects many things. For instance, attempted felonies are always punishable as well. Attemped misdemeanours are only punishable if explicitly stated in the respective law. Felonies can exclude you from being elected into an office or to be a public official. And of course, jurisdiction of the courts is determined by the category.

    We have an infraction called "abuse of trust", which refers to the situation where a civil legal document concerning a movable is in action between two or more parties, granting the physical possession of the good to another person, and this person uses the good in ways which he is not entitled by the contract or appropriates it. Is there a correspondent in the German law for this infraction?
    Well, not really. Let’s say I lend you my car under the condition that you do not leave the country with it. If you do it nonetheless, that’s a simple breach of contract and a civilian affair. There’s nothing in the penal code about it (as far as I know) and I could only sue you myself for some contractual penalty that was hopefully included in the contract. I would have to use the BGB, the German civil code.

    Of course, if you keep the car and don’t return it, then your committing a crime (misappropriation in this case). If you take a baseball bat to it, you’re also committing a crime (damage to property). But if you do nothing else except make a trip home and return it afterwards, that’s not a matter for the prosecutor. The German legislation believes that such things are part of the legal autonomy of the citizens. Which means that we should decide between ourselves what penalty should be due for what violation of a contract.
    foobar is online now Last edited by foobar; 25.10.2012 at 02:40. Reason: Plural

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