论德国法上诈骗所得赃款的收缴和受害人的民事救济

On the Collection of Gains from Fraud in German Law and the Victim's Civil Relief

德国在2017年对犯罪所得之收缴与退还作了全面修改,建立了国家收缴与受害人补偿的双层机制。对受害人的补偿,通过赃物退还来实现。诈骗所得赃款的收缴与退还原则上适用上述一般规则。赃款流转涉及第三人时,若第三人已经依法取得相关权利,国家不得再向第三人收缴,受害人也不得向第三人主张权利;若第三人无法律上原因收受赃款,应依不当得利规则向受害人返还;明知赃款而收受的,构成洗钱罪,收受人因违反《德国民法典》第823条第2款所称之保护规范而应向受害人承担侵权责任。

In 2017, Germany amended the provisions about confiscation and return of the property that offender gained in the crime and established a two-tier mechanism for confiscation and compensation for the victim by the state. Compensation for the victim is achieved by returning the property. These general rules can be applied in principle to the collection and refund of money that was gained by fraud. When the transfer of money involves a third party, if the third party has acquired relevant rights according to law, the state cannot confiscate it from the third party, and the victim cannot claim any rights to the transferred moneys;if the third party acquired the money without legal reasons, he should return it to the victim according to the rules of unjust enrichment;the recipient commits money laundering if he receives the money despite knowing from whence it came from, in this situation the recipient shall bear the tort liability to the victim for violating the protection norms referred to § 823 Ⅱ BGB.