Difference between theft and embezzlement

Theft and embezzlement are property crimes. The difference lies in the way in which the perpetrator appropriates a strange thing. In order to understand this difference, one has to refer to the "constituent elements" of the two offenses. It is helpful to first read the wording of the regulations in Section 242 of the Criminal Code and Section 246 of the Criminal Code to read.

Theft is taking away other people's things

Theft is characterized by the fact that the perpetrator takes away someone else's thing. He breaks the owner's custody. Until then, the owner had physical control over the property. The perpetrator takes them away from him.

• If the owner refuses to take it away, mere theft turns into robbery. The decisive factor in each case is the perpetrator's intention to assert himself. He wants to end the owner's custody. This turns him into a thief.
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• Section 242 of the Criminal Code punishes the thief with a prison sentence of up to five years or with a fine. The penalty increases to up to 10 years if the perpetrator removes the item from a closed container or steals it commercially. The criminal law speaks of "particularly serious cases of theft" (§ 243 StGB).

In the case of embezzlement, there is no intention to take away

In the case of embezzlement, the injustice of the act is less. In this case, the perpetrator already has the property in his possession. The owner has either voluntarily left the thing to the perpetrator or the perpetrator has found it somewhere. He no longer needs to break the custody of the owner. The owner no longer has physical control.

• The difference to theft is that the embezzlement is not intended to be taken away. The one who embezzles doesn't want to take anything away. He wants to keep what he has in custody in his possession. He withholds what he has in his possession. He doesn't want to give the thing back to the owner.
• What both offenses have in common is that the perpetrator acts with the intention of appropriateness. He wants to establish possession and property. In the event of theft, he must take the thing away beforehand. At the time of embezzlement, he already has them in his possession.
• Section 246 of the Criminal Code punishes embezzlement with a prison sentence of up to three years or with a fine. If the matter was entrusted to the perpetrator, the threat of punishment increases to up to five years imprisonment or a fine.

Examples illustrate the difference between the offenses

• If you have borrowed a book from the city library and do not return it, withhold it. Tuck the book under your jacket behind the bookshelf, steal it.
• If you find a wallet on the way, you are obliged to hand it over to the lost property office. If you do not do this, you are suppressing the find.
• Or: The grandmother gives you her jewelry to keep for the duration of your stay at the spa. She "entrusts" the jewelry to you. This element qualifies embezzlement as a particularly serious case.

In order not to criminalize every act immediately, theft and embezzlement of "low value" items are only prosecuted upon request (Section 248a of the Criminal Code). Where the limit lies is a question of the individual case. Furthermore, the criminal law knows the independently regulated facts of the "unauthorized use of foreign vehicles" in § 248b StGB and the "withdrawal of electrical energy" in § 248c StGB.