Embezzlement – Lawyer Frankfurt

Embezzlement (§ 246 StGB) – Elements, Distinctions & Defence

Anyone who unlawfully appropriates another person’s movable property for themselves or a third party commits embezzlement under § 246(1) StGB. The penalty range is a fine or imprisonment of up to three years — unless a stricter provision applies (subsidiarity). Where the item was entrusted, § 246(2) StGB increases the maximum to five years. Embezzlement is a property offence that primarily protects ownership (not mere custody). If you face allegations, our Frankfurt-based defence team Buchert Jacob Peter represents you discreetly and nationwide. Learn the basics of German criminal procedure and browse our practice areas.

Statutory definition (§ 246 StGB)

• Para. 1 (basic offence): Appropriation of another’s movable property — fine or imprisonment up to three years; subsidiary to stricter offences (e.g. theft, robbery, breach of trust).
• Para. 2 (qualification – “misappropriation of entrusted property”): Appropriation of an entrusted item — fine or imprisonment up to five years.
• Para. 3: Attempt is punishable.

Key elements — in practice

• “Another’s” property: Everything not solely owned by the accused (including co-/joint ownership).
• Appropriation (“Zueignung”): A manifest act revealing intent to appropriate — permanently excluding the owner (deprivation element) and incorporating the item or its value into one’s own (or a third party’s) assets (acquisition element). Mere inner intent is insufficient; typical acts are consuming, selling, gifting or processing.
• Third-party appropriation: Appropriation in favour of a third party suffices (e.g. purposeful transfer so the third party “absorbs” the asset).
• Entrusted property (§ 246(2)): Item given in trust to act only in the owner’s interest or per instructions (classic: rental/loan/escrow, retention of title).

Distinctions & common constellations

• Embezzlement vs. theft: Theft requires taking (breach of custody). Embezzlement does not — the focus is on appropriation. Where both apply, § 246 is subsidiary.
• Breach of trust (§ 266 StGB): If a fiduciary duty to manage assets is breached, breach of trust (up to 5 years) is usually prioritised.
• Found property: Keeping and appropriating finds can fulfil § 246 — depends on a manifest appropriation act and compliance with reporting duties.
• “Fuel-and-go” / checkout incidents: Depending on ownership transfer and timing of intent, scenarios may fall under § 246, § 242 (theft) or — with initial payment fraud — also fraud/breach of trust.
• Failure to return rentals: Civil default alone is insufficient; criminal liability requires a clear manifestation of appropriation.

Sentencing, complaint requirements & procedural notes

• Penalty range: § 246(1) — fine or up to 3 years; § 246(2) — fine or up to 5 years.
• Complaint offences: In domestic/family contexts (§ 247 StGB) and for low-value items (§ 248a StGB), a criminal complaint is generally required.
• Concurrence: § 246 is a catch-all. If a stricter offence applies (e.g. robbery/breach of trust), § 246 steps back. Later acts of control are often treated as acts already covered by sentencing.

Defence angles & typical pitfalls

• No clear manifestation: Ambiguous conduct (mere safekeeping, mistaken use) may lack an appropriation act.
• Over-extended third-party appropriation: Not every “handover” equals appropriation; focus on whether the third party’s assets were actually enriched.
• Ignoring stricter offences: Precise concurrence analysis (theft/breach of trust/fraud) is crucial for sentencing and strategy.
• Entrusted property: Scrutinise the legal basis of transfer (fiduciary/instruction binding, retention of title, rental/loan).

FAQ – Embezzlement (§ 246 StGB)

• Is refusing to return an item enough?
  Not automatically. There must be an objective act of appropriation (e.g. sale or consumption). Mere delay is usually civil, not criminal.
• I “held on” to it for someone — is that embezzlement?
  Only if you manifest appropriation intent. Pure safekeeping without “incorporation” is insufficient.
• What does “entrusted” mean?
  The item was given in reliance that you act only in the owner’s interest/instruction (e.g. rental, loan, commission). Then § 246(2) applies.
• Does § 246 apply to very small values?
  Yes — but for low-value items a complaint is typically necessary (§ 248a StGB).
• When is § 246 excluded?
  Where a stricter offence applies (e.g. theft with taking, or breach of trust due to fiduciary duties). § 246 is subsidiary.

Strategy & support

We assess elements, distinctions and concurrence early — including whether a manifest act exists at all. In business settings we clarify corporate roles/duties, internal instructions, possession vs. ownership and documentation chains. Where suitable, we pursue outcomes such as discontinuance (§ 153a StPO), a penal order or, if appropriate, a negotiated understanding. For the path of proceedings see the course of criminal proceedings and your right of access to files.

Call-to-Action: Get reliable advice now

Accused of embezzlement? We provide calm, structured and solution-focused defence in Frankfurt and across Germany. Call +49 69 710 33 330 or email kanzlei@dr-buchert.de. You can also use our contact page.

Contact us – Your specialist criminal lawyers in Frankfurt am Main and nationwide

• Dr. Caroline Jacob, Specialist Lawyer for Criminal Law
• Frank M. Peter, Specialist Lawyer for Criminal Law
• Of Counsel: Prof. Dr. Frank Peter Schuster
• Cooperation Partner: Tax Advisor and former Tax Investigator Frank Wehrheim

Our law firm Buchert Jacob Peter has been based in Frankfurt am Main for over 25 years with experienced criminal defence lawyers. We represent clients nationwide.

Contact: Phone +49 69 710 33 330 · Email kanzlei@dr-buchert.de

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