Negligent breach of fiduciary duty

Legal definiton 

Section 221 of the Criminal Code:

(1) Whoever, through gross negligence, breaches a legally imposed or contractually assumed important obligation to safeguard or manage another's property, thereby causing significant damage to another, shall be punished by imprisonment for up to six months or disqualification.

(2) Imprisonment for up to three years shall be imposed on the perpetrator 

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

b) if they cause large-scale damage by such an act.

Subjective aspect - intent

Negligent breach of fiduciary duty is a negligent criminal offence. Intent is not required.

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?