Donation

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The Abstiftung is a special case of incitement . The peculiarity of the donation is that the perpetrator was already firmly determined to commit a qualified offense and the donor moves him to only commit a lighter offense of the same type ( basic offense ).

Example: T is determined to rob the O while carrying a knife (the realization would represent a serious robbery within the meaning of Section 250 I No. 1 lit. a StGB and thus a qualification of the robbery ). A persuades him not to take the knife with him (the implementation would only be a "simple" robbery in the sense of § 249 I StGB and thus only the basic offense).

With regard to the criminal liability of the donor a distinction must be made:

  • if the perpetrator completely abandons his criminal plan as a result of the action of the donor, the intentional main offense i. S. d. Section 26 of the Criminal Code. Due to the accessory between participation and main act, the donor must also be free of punishment and incitement is ruled out.
  • If the perpetrator is persuaded by the abuser not to commit the more serious offense, as originally intended by the offender, but only to carry out the lighter offense (for example, instead of the theft with weapons, "only" a simple theft), the abortionist generally remains unpunished in accordance with the principle of risk reduction . Depending on the opinion represented, however, there may be psychological aid , which according to § 34 StGB can be justified. Of course, the prevailing opinion already rejects the factual nature of psychological aid for lack of objective attribution. If one contrasts the increase in the risk of committing the offense through psychological assistance with the alleviation of the dangerousness of the offense, the former must resign.

The Abstiftung is only because of the very different legal consequences, strictly from the Aufstiftung to distinguish.

If the participant persuades the main perpetrator to commit an entirely different act (such as theft instead of bodily harm) instead of the planned act, this is what is known as reorganization. This case is to be treated as a conventional incitement.

See also

Individual evidence

  1. ^ Wessels, Johannes / Beulke, Werner , Criminal Law General Part , 40th Edition, Munich 2010, Rn. 571 mwN
  2. ^ Wessels, Johannes / Beulke, Werner , Criminal Law General Part , 40th Edition, Munich 2010, Rn. 571 mwN
  3. ↑ a b c Kudlich, Hans: Cases on criminal law, general part . 3. Edition. Vahlen, Munich 2018, ISBN 978-3-8006-5650-9 , pp. 212 .