Die Rechtsfigur der hypothetischen Einwilligung und ihre Übertragbarkeit auf die Untreue (§ 266 StGB)

The embezzlement and abuse of trust, which is punishable according to section 266 of the German criminal code, has experienced a steady increase in importance in recent years. At the same time, there has been growing criticism that this crime is incompatible with the principle of certainty under German criminal law. The German Federal Constitutional Court assumes that the stipulations in section 266 of the German criminal code are still compatible with the principle of certainty under German criminal law. At the same time, it has called on legal circles and academia to further concretise what constitutes the embezzlement and abuse of trust. That is the starting point of this study. The author first of all presents the conditions of hypothetical consent, in order to subsequently clarify whether it can be applied to section 266 of the German criminal code under the special conditions of property criminal law. In doing so, the author also takes into account system theory, economic analysis and the liberal concept of law.