Germany Also Has Straw Account Cases

Germany also encounters straw account cases, specifically those involving individuals providing account passwords to strangers.

Providing a straw account to a fraud syndicate for victims' funds to be transferred into is related not only to the crime of fraud, but also to the crime of "money laundering." In fact, German legislators have classified the act of providing a straw account as a form of "money laundering activity."

However, in order to bring the act of "providing account passwords to strangers" within the scope of criminal penalties, German legislators newly enacted the offense of "money laundering through recklessness." Here, "recklessness" refers to "gross negligence."

The key point is that German legislators did not take the view that: because "everyone knows one should not casually provide account numbers and passwords to strangers" or "anything can happen when you give your account to a stranger," the act of "providing account passwords to strangers" inherently entails the intent to aid illegality. If such conduct is deemed highly harmful and warrants criminalization, legislators must create a statutory provision for "grossly negligent offenses" to resolve the issue.

How, then, do German courts view this?

If German courts were like our courts—holding that because "everyone knows one should not casually provide account numbers and passwords to strangers" or "anything can happen when you give your account to a stranger," providing an account password to a stranger constitutes intent to aid and abet fraud or intentional money laundering—then even the parliamentary enactment of "money laundering through gross negligence" would not prevent German courts from ruling that providing account passwords to strangers constitutes aiding and abetting fraud or intentional money laundering. This is because the existence of a negligent offense does not preclude the application of an intentional offense (just as the existence of negligent homicide does not prevent a court from applying murder charges if it determines the defendant had the intent to cause death).

However, German courts did not do that. Even when a defendant rented out their account to a stranger in exchange for rent, and that stranger happened to be a criminal syndicate, the courts still restricted themselves to determining whether the defendant committed money laundering through "gross negligence." The rationale is simple: German courts know that the standards for negligence and intent must not be confused, and a person cannot be elevated to an intentional offender simply because of their recklessness, even though the consequences of that recklessness affected multiple victims.

This is precisely what adhering to the "principle of culpability" demands—a professional requirement.

Not only that, but German courts even apply strict review standards to "gross negligence" and "money laundering through gross negligence." Merely "providing an account to a stranger" does not automatically amount to "gross negligence." If the stranger's pretense in inducing the defendant to provide account credentials was sufficient to reasonably mislead the defendant, the defendant would not be deemed grossly negligent and thus would not be guilty. Furthermore, on an objective level, German courts restrict the act of delivery arising from gross negligence to be punishable only under circumstances of "concrete danger."