Breach of fiduciary duty

Legal definiton 

Section 220 of the Criminal Code:

(1) Whoever breaches a legally imposed or contractually assumed obligation to safeguard or manage another's property, thereby causing non-insignificant damage to another, shall be punished by imprisonment for up to two years or disqualification.

(2) The perpetrator shall be punished by imprisonment for six months to five years or a monetary penalty if they:

a) commit the act described in paragraph 1 as a person specially entrusted with protecting the interests of the aggrieved person, or

b) they cause significant damage by such an act.

(3) Imprisonment for two to eight years shall be imposed on the perpetrator if they cause large-scale damage by the act mentioned in paragraph 1.

Subjective aspect - intent

Breach of fiduciary duty is an intentional criminal offence. A criminal offence is committed intentionally if the perpetrator wanted to violate or endanger a legally protected interest in the manner specified by the Criminal Code (direct intent), or if the perpetrator knew that his actions could result in such a violation or endangerment and accepted the possibility of it occurring (indirect intent).

If the act can be deemed as mere negligence rather than intent, it does not constitute the described criminal offence. 

Defense

There are various defense strategies available. Given the elements of this crime, the following questions may be relevant:

• How was the damage supposed to occur?
  
• To what extent was the damage supposed to occur?
  
• What was the duty of the person concerned towards others, or towards another's property?
  
• From what did this duty arise?
  
• How was this duty formulated?
  
• How would a person in a similar position have acted in the given situation?
  
• What information did the person concerned have available at the relevant time?
  
• What information could the person have obtained?
  
• Did they seek the help of an expert?
  
• Did they act according to a prepared expert opinion or advice from an expert?
• Did they have reason to trust the expert?
  
• What was the contemporary context of the matter?
  
• Was the perpetrator's intent directed towards the decisive facts?