Self Defense (Germany)

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In German criminal and private law, self-defense is the defense that is required to avert a current illegal attack on yourself or on someone else. It is regulated in Section 32 of the Criminal Code (StGB), Section 227 of the German Civil Code (BGB) and Section 15 of the Administrative Offenses Act (OWiG).

Self-defense can be exercised to protect one's own individual legal interests and those of others , such as life, limb and property. The right of self-defense is based on the principle of probation. It allows the attacker to violate legal interests and obliges him to tolerate him . Therefore, an act justified by self-defense does not constitute an injustice. In comparison to other reasons of justification, the self-defense right is characterized by the fact that it gives the agent particularly extensive powers to intervene.

History of origin

The right to self-defense has been derived from ancient times from the Roman legal principle Vim vi repellere licet (Latin, English violence may be returned with violence ). In modern parlance, the basic formula “The law does not need to give way to injustice” (also called the principle of probation) is often used. On the one hand, this is intended to establish the right to self-defense. However, a first principle has already been laid down: an attacked person is basically permitted to defend himself with force , even if he could flee as the “mildest means” of “self-defense”; so it can be fortified s and need not soft .

A look at history shows that the right to self-defense was not always a given. One of the most drastic, most intensively investigated and documented cases of self-defense with a fatal outcome for the attacker occurred in Silesia in 1805 : A well-known robber named Exner who had escaped from prison died while attempting to break into a lonely mill by a knife stab by the miller who was present . As a result of the intellectual and legal absolutism of the Prussian authoritarian state, the general Prussian land law did not contain any clear stipulations about the right to self-defense. In Germany at that time, recognition of self-defense was in most cases entirely at the discretion of the negotiating judge or at the mercy of the respective sovereign. Therefore, it had to be clarified in a lengthy process to what extent the right to self-defense could be applied in this particular individual case . The subsequent trial of the death of the robber Exner led, after a long period of time, under pressure from the public and external conditions (especially the French Revolution ), an intense, controversial discussion among the leading legal scholars of the time, which eventually became the one that is still valid today Formulation of self-defense resulted in German law. This case was so significant and had so far-reaching consequences at the time that it was already included in the “ New Pitaval ”. The proponents of a documented right to self-defense referred to the absence of the authorities in self-defense cases and postulated the civil rights and regulations that are still valid today. The opponents emphasized the possibility of abuse and violation of the state's monopoly on the use of force . The discussion about this has continued until very recently. The definition of excess of emergency defense and its temporary reinforcement are evidence of this.

The right to self-defense in Section 32 of the Criminal Code is based on Section 41 of the Prussian Criminal Code of 1851. This norm was transferred to Section 53 of the Reich Criminal Code of 1872 without any changes in content . In addition to the justification of self-defense, it contained a regulation on excess of emergency defense that exempts from punishment. The self-defense regulation contained in Section 53 of the Criminal Code was replaced by Section 32 of the Criminal Code through the Criminal Law Reform Act. The excess of emergency defense has since been regulated in Section 33 of the Criminal Code.

Function of the right of self-defense

According to Section 32 (1) StGB, a criminal offense is not unlawful if it is committed in the exercise of the right to self-defense. The right of self-defense thus represents a justification for interfering with the attacker's legal interests. Therefore, a person who violates another person's legal interest in exercising his or her right of self-defense is not liable to prosecution.

A right to self-defense is also standardized in Section 227 of the German Civil Code (BGB). It is of importance for civil law : If someone violates another person's legal interest and is justified according to § 227 BGB, he does not commit an unlawful violation of legal interest, which is why he is not obliged to pay the attacker under tort law . Another self-defense law with significance for the misdemeanor cases in § 15 of the Code of Administrative Offenses normalized (OWiG).

In principle, the attacked person may defend himself in any way possible. As a result, the right to self-defense is characterized by a particularly large power to intervene compared to other reasons for justification. The right to self-defense is limited by the criteria of necessity and necessity of the self-defense act. In addition, those who act in self-defense may only violate the legal interests of the attacker.

According to the prevailing view in jurisprudence, the right of self-defense protects both individual and general interests, the combination of which justifies the scope of the law: On the one hand, the right of self-defense serves to protect the legal interest under attack. On the other hand, it serves to enforce the legal system. On the other hand, according to a different opinion, the right to self-defense serves solely to protect individual interests.

Requirements for self-defense according to § 32 StGB

(1) Anyone who commits an act that is required by self-defense is not acting unlawfully.

(2) Self-defense is the defense that is required to avert a current unlawful attack on oneself or on another.

Self-defense

According to Section 32 (2) StGB, the right to self-defense requires that there is a self-defense situation. This is a current illegal attack on a self-defense good.

Attack on a legal asset

An attack is a threat to a legally protected good or interest through will-based human behavior . The attack can be intentional or negligent . A deliberate threat to life and limb exists, for example, when the attacker tries to shoot his victim with a weapon . The unauthorized taking of a photo represents an attack on the right to one's own picture . Smoking a person can represent an attack on their health and honor. If an animal attacks a person, this constitutes an attack if the animal is incited to attack by a person. Even in a failure to an attack may be. Under which conditions this is possible is, however, individually controversial in jurisprudence. According to the different views, it is an attack if the perpetrator, as a guarantor , is obliged to avert success.

Section 32 of the Criminal Code only covers threats that are directed against individual legal interests. Life, physical integrity, freedom and property come into question as such. If an individual legal asset is assigned to the state, its ability to defend itself is judged according to the type of assignment: If the state owns a legal asset as the treasury , it is capable of self-defense according to the general rules of Section 32 of the Criminal Code. This applies to public property, for example. However, if a good is assigned to the state in its sovereign function, it is only capable of self-defense according to Section 32 StGB if it is of fundamental importance for the state and the state cannot protect it itself. After all, legal interests of the general public, such as road safety and public order, are not capable of self-defense from the outset .

There is no attack if the threatened property is only protected in a legal process. Therefore, for example, there is no attack on the legal status of a landlord if the tenant refuses to vacate an apartment after the lease has ended. In such a case, the landlord must obtain an eviction notice in court. As a justification, however, instead of the right to self-defense, a self-help under civil law comes into question.

When averting attacks on the legal interests of another, one speaks of emergency aid (also self-defense aid ). Their admissibility requirements basically correspond to those of self-defense. However, if the challenged legal asset is at the disposal of its owner, justification through emergency aid is ruled out because of its at least partially individual protective purpose, if the person concerned wants to tolerate the attack. There is a lack of availability for the legal asset of life. It is controversial in jurisprudence whether and to what extent state emergency aid is possible in favor of one of the parties involved. It turns out to be problematic that the application of Section 32 StGB threatens to circumvent the authorization to intervene under hazard prevention law with its specific requirements. According to the prevailing opinion, § 32 StGB also grants sovereigns the right to emergency aid, as this improves the protection of the challenged legal interest. The compatibility with hazard prevention regulations is separate.

Presence of the attack

An attack is present as soon as the violation of legal interests is imminent, is currently taking place or is still ongoing.

An attack is imminent if the attacker can endanger a legal interest through his or her behavior without any significant intermediate steps. An indication for assessing the imminent imminence is contained in § 22 StGB. According to this, an offense reaches the experimental stage when the perpetrator starts the act immediately, i.e. has taken all steps from his point of view to endanger a legal interest without any further essential intermediate steps. If the perpetrator exceeds the attempt threshold, an attack is present. However, it is not necessary to exceed this threshold for the most effective protection of the threatened legal interest.

Presence exists, for example, when the attacker takes a firearm in order to shoot his victim. On the other hand, it is missing if the perpetrator merely announces the violation of the legal interest but is still too far away from the victim to be able to endanger the latter. The existence of a permanently dangerous situation, for example in the case of a family tyrant, does not in itself constitute a current attack.

The attack continues until it has ended , since up to this point in time the violation of legal interests can be deepened. A theft ( Section 242 of the Criminal Code) is therefore present, for example, until the perpetrator has obtained firm custody of the object of the crime. The persistence of an attack also ends if an attempt fails .

According to the prevailing opinion, the requirement of presence stands in the way of recognition of preventive self-defense. A situation of preventive self-defense exists, for example, when a person realizes that they are to become the victim of a crime in the foreseeable future. Against the admissibility of preventive self-defense, it is argued in particular that the scope of the powers that the right of self-defense confers on the agent makes a restrictive application of this right necessary. Even an ongoing danger, which can justify an emergency right under Section 34 of the Criminal Code, is fundamentally not present in the sense of Section 32 of the Criminal Code, which is narrower in this respect.

Illegality of the attack

According to Section 32 (2) StGB, a self-defense situation requires that the attack is unlawful.

It is controversial in jurisprudence under which conditions there is illegality. The prevailing view is that an attack is illegal if it is not supported by a permit standard so that the attacked person does not have to tolerate it. So the yardstick is the fact that the deed is not worth the success. According to one opinion represented in legal doctrine, illegality also requires that the perpetrator's behavior is unworthy of action, i.e. contrary to a requirement of the legal system. She argues that only with such an injustice are the legal consequences of the right of self-defense appropriate.

It is not illegal to act if someone fulfills a legal requirement in a justified manner. For example, someone does not commit an attack who endangers someone else's legal interest while exercising their right of self-defense.

According to the prevailing opinion, the attack does not have to be culpable or otherwise individually accusable, since Section 32 (2) StGB does not expressly require this. According to this, self-defense is also possible, for example against children and completely drunk. According to a counter-opinion, however, there is no need to defend the legal system against a person acting innocently, so that a right of self-defense is ruled out. As a result, both views often come to similar results, since the prevailing view is that the aggressor's innocence severely limits the scope of the right to self-defense.

When judging a sovereign official act as an attack, the jurisprudence and parts of the literature use the criminal law term of illegality. According to this, an official act is already considered to be lawful under criminal law if the civil servant observes the factual and local jurisdiction as well as essential formalities and acts either on binding instructions from his superior or on the basis of his own dutiful exercise of discretion . Further substantive legal requirements of the respective measure, which result from the relevant specialist law, are therefore irrelevant. For example, case law denied the existence of a self-defense situation when a person defended himself against the enforcement of a materially illegal deportation by using a knife. This restriction of the right of self-defense, referred to as the public official's privilege in error, is initially justified by the fact that legal action is open against sovereign action. In addition, with a stricter standard, there is a risk that the administrator will be impaired in his decision-making for fear of self-defense. Finally, in administrative law, too, there is an obligation to tolerate the execution of materially illegal orders.

Act of self-defense

The act of self-defense is the act that the defender takes to ward off the attack. This may only be directed against the attacker himself or his legal interests. An intervention in the legal interests of third parties cannot be justified by self-defense. However, according to case law, interference with property of the general public can also be justified if this is necessary in order to ward off the attack. For example, the case law affirmed the possibility of justifying a dangerous interference in road traffic ( Section 315b of the Criminal Code) when the attacked person approached several people in order to protect himself from an attack.

In principle, self-defense can be exercised both in the form of protective defense and in the form of defensive defense. In the first case, the attacked person is limited to repelling the attack. In the latter, he also takes active action against the attacker.

Necessity of self-defense

Self-defense only authorizes the necessary defense. A defense is required if it is the mildest of all possible and equally effective means capable of safely and definitively ending the attack.

The starting point for assessing the necessity of a self-defense act is its suitability for defending against the attack. An action that is likely to achieve or at least promote defense against the attack is suitable. This prognosis is made from an objective point of view ex ante , whereby the court rulings credit the attacked person with the fact that he usually does not have enough time to fully grasp the facts. There is a lack of suitability in the case of means which cannot in any way promote the defense sought. If there are several possible actions that are equally suitable, only the mildest of these is required. If, for example, the attacked person can defend himself equally by both injuring and merely threatening the attacker, only the threat is required. However, if the chances of success of the threat are uncertain, this is not just as suitable for defense as it is for injuring. In this case, therefore, violating is required. The self-defense practitioner is therefore not required to take risks in defense at his own expense. Nor is he obliged to flee. Although this is the mildest of all possible means for the attacker, this conceptually does not constitute a defense.

In contrast to the justifying state of emergency under Section 34 of the Criminal Code, Section 32 of the Criminal Code does not require a weighing of interests. For this reason, the necessity of self-defense does not apply if the attacker's property impaired by exercising the right to self-defense has a higher priority than the attacked property. For example, nobody has to accept physical injury or damage to property if this can only be prevented by a fatal act of defense.

When using particularly dangerous means of defense, a stepped approach is usually required. This is important for the use of firearms, for example: the attacked person must first threaten their use. If this is not effective, he may then fire a warning shot. If this is not enough either, he may fire a shot at non-vital parts of the body. Only if this is not enough can he fire a fatal shot as a last resort .

The use of automatic protective devices, such as watch dogs and self-firing systems , is fundamentally a permitted exercise of the right to self-defense. However, the perpetrator can be liable to prosecution if the protective device harms a third party against whom there is no right of self-defense. Because of its particular danger, a protective device is usually only required if it is recognizable or if it is pointed out.

Self-defense is not necessary if the attacked person can avail himself of state aid in good time, which can also effectively protect the threatened property. The exceptional right to self-defense is therefore fundamentally subsidiary to state violence.

Necessity of self-defense

In order for the self-defense act to be justified, it must also be required in accordance with Section 32 (1) StGB. The feature of necessity serves to take into account socio-ethical evaluations when questioning the justification of behavior through self-defense. It thus supplements the feature of necessity, which is purely related to the actual circumstances of the individual case. The question of which aspects influence the requirement and how they affect it is one of the greatest controversial issues in self-defense law.

The derivation of the feature of necessity is controversial in jurisprudence. In some cases, the principle of proportionality is used, which is of great importance for the assessment of sovereign action, since the person acting in self-defense performs a task that usually falls to the state. Others argue with the prohibition of abuse of rights . Still others see the reason for the restriction of the right of self-defense in the lack of interest in law enforcement.

If a defense is not absolutely necessary, this regularly leads to a restriction of the right to self-defense to the extent that the range of potential self-defense acts is restricted. This results in a tiered right of self-defense: First of all, the attacked person must avoid the attack. If this is not possible, he may exercise protection . Only if this cannot provide adequate protection either, he may switch to defensive walls. Depending on the individual case, a certain acceptance of legal interventions by the defense lawyer can be demanded, so that the exercise of self-defense is ruled out altogether.

As a rule, an act of self-defense is considered necessary, since the presence of the other requirements of Section 32 StGB indicates that there is an interest worthy of protection in the enforcement of the legal system. In exceptional cases, however, the exercise of the right to self-defense can be socially and ethically disapproved. In law, several groups of cases are recognized in which there is a socio-ethical disapproval of self-defense.

Extreme disproportion

The requirement of self-defense can be omitted if there is a clear disproportion between the attacked and the injured property. This follows from the fact that a clearly disproportionate reaction contradicts the fundamental requirements of the legal order, in particular the principle of proportionality and the prohibition of abuse of law.

An extreme disproportion can exist , for example, in the threat of death to protect a right of way . It is also present if the perpetrator steals an item of little value ( Section 242 of the Criminal Code) and this is thwarted by the fatal use of firearms. The threshold of inferiority is controversial in jurisprudence, some voices are based on § 243 paragraph 2, § 248a StGB of 50 €, others from 100 € to 200 €. According to the prevailing opinion, even the theft of medium-value items can be thwarted with a fatal act of defense if milder means are not available. The general ban on killing people for the protection of property, which is standardized in Art. 2 Paragraph 2 of the European Convention on Human Rights , does not set any limits to the necessity of self-defense according to the prevailing view in jurisprudence, since the provision is only aimed at sovereigns.

Attacks by clearly guilty people

The right to self-defense can still not be used if the attack originates from a person who is clearly guilty. This is the case, for example, if the attack originates from a child or someone who is completely drunk or if the attacker is in an unavoidable error of prohibition ( Section 17 StGB). In such a case, the full scope of the extensive right of self-defense is not required to protect the legal system.

Attack within a close personal relationship

Furthermore, the necessity of self-defense can be omitted if the attack occurs within a close personal guarantor relationship. Such exist, for example, between spouses and family members . The restriction of the right to self-defense is derived for this group of cases from the obligation to provide special care. The scope of the restriction on the right to self-defense is largely determined by the strength of the bond between the parties involved. The more broken a closeness relationship, the less there is an ethical need to restrict the right of self-defense.

Actions by public officials, especially torture

According to the prevailing view, sovereigns can also rely on the justification of self-defense. When exercising the right of self-defense, however, they are subject to the specific limits of sovereign action. In particular, they must pay attention to the assessments of the Basic Law , which influence the necessity of self-defense.

It is not advisable to carry out torture , for example , because it violates the attacker's human dignity ( Art. 1 Paragraph 1 GG) and is expressly prohibited by Section 136a Paragraph 1 of the Code of Criminal Procedure . For this reason, the Frankfurt am Main regional court denied the justification by self-defense when police officers threatened a kidnapper with violence in order to find out the whereabouts of a kidnapped child.

Termination of pregnancy

Commits a pregnant woman an abortion under the provisions of § 218a paragraph 1 of the Criminal Code, it is indeed falling outside the scope, but the crash remains illegal. Therefore, it represents a current illegal attack on the womb. However, if a third party were allowed to prevent the termination by exercising his right of self-defense, this would endanger the legislature's advisory solution. Therefore, such an act of self-defense is not required.

Self-defense provocation

A special case exists when the attacked person brings about the self-defense situation in a reproachable manner, for example by provoking the attacker. In this case one speaks of a self-defense provocation ( actio illicita in causa ). There is broad consensus in jurisprudence that this leads to a restriction of the right to self-defense, the nature and extent of which are extremely debatable.

Principles for accusable provocation

Anyone who carelessly contributes to the emergence of a dangerous situation does not already act accusingly. What is required is at least unlawful previous behavior, for example in the form of trespassing ( Section 123 StGB). According to one view shared by the jurisprudence, there is also a reproachable provocation if the attacked person behaves in a socio-ethically disapproved manner. She assumed this, for example, in a case in which the attacked attempted to drive the later attacker out of a train compartment by opening a window several times.

According to the prevailing view, self-defense provocation does not exclude the right to self-defense, since the presence of a provocation should not lead to the fact that one can no longer defend oneself against current, illegal attacks. This is justified by the fact that the attacked attacker is self-endangering himself through his attack. This excludes an objective attribution of the creation of danger through the provocation of the provocative defender. According to the prevailing opinion, the scope of the right to self-defense is limited as a result of the provocation: The attacked person must give priority in the event of a reproachable provocation and may only exercise subsidiary defense and defensive defense. A contradicting view applies the weighing standards of § 228 BGB and § 34 StGB analogously.

The restriction is dogmatically examined either through the interpretation of the constituent element of the necessity or in the context of the subjective will to defend, which is pushed into the background by a will to attack so that it can no longer be taken into account. In addition, a criminal liability from an actio illicita in causa is discussed in the literature . Similar to the actio libera in causa, this legal figure justifies a criminal charge in that it is not linked to the justified defensive act, but to the previous behavior of the defender. According to this, contributing to the situation in which the attack occurs can trigger a charge of negligence. For example, if the attacked kills the attacker as part of an emergency caused by negligence, he is guilty of the negligent homicide ( Section 222 of the Criminal Code). Jurisprudence and prevailing doctrine are largely hostile to the actio illicita, as it represents an expansion of the risk of criminal liability that is not laid down in the law and therefore violates the requirement of certainty ( Art. 103 (2) GG).

Intent provocation

If the later attacked intentionally or at least knowingly provokes a self-defense situation in order to violate the attacker in exercising his right to self-defense, the necessity of self-defense due to abusive behavior no longer applies. As a result, the attacked person has to tolerate the attack. However, if the provoked person attacks in a more dangerous way than expected by the attacked person, a graduated right of self-defense can exist if the provocateur cannot be asked to withstand the attack.

Defense provocation

A defensive provocation is when the person who is later attacked equips himself with dangerous means of defense in advance in order to repel an attack. According to the prevailing view, it does not fundamentally conflict with the necessity of self-defense.

Subjective element of justification

A justification through self-defense ultimately presupposes, according to the prevailing opinion, that the attacked person has knowledge of the objective requirements of self-defense.

Derivation of the subjective element of justification

The necessity of the subjective justification element results from the words about [...] to in § 32 paragraph 2 StGB. In addition, it corresponds to the position of the grounds of justification in the structure of the crime to completely exclude the injustice contained in the offense. The offense shows as elements of injustice, at least in the area of ​​successful offenses , the wrongdoing and the wrongdoing . This means that there is a fundamentally criminal injustice both in the actual defensive act and in the success of the act. It follows that when assessing self-defense, both the right to act and the wrong to succeed must be abolished in order to exclude criminal liability. If it were assumed that there is no need for a subjective element of justification, it would often remain a criminal liability for unsuitable attempt. The actual success would be justified, but not the causal act. The necessity of the subjective element of justification arises from the criminal liability of the unsuitable attempt. According to this view, for example, anyone who knocks down a fleeing thief without knowing that the person was a fleeing thief cannot exempt himself from punishment due to a lack of will to defend himself, although there is objectively a self-defense situation.

In some cases, the will to defend is considered unnecessary, since objectively speaking the legal order is being defended. However, this view is overwhelmingly rejected. It leads to the surprising result that the perpetrator acting with hostility would be justified.

Requirements for the subjective element of justification

In jurisprudence there is an inconsistent assessment of what requirements are to be placed on the subjective element of justification and what legal consequences the absence of the subjective element of justification entails.

The jurisprudence as well as parts of the literature require a targeted defense will. This is justified, among other things, with the wording of Section 32 of the Criminal Code, which implies a targeted defense will with the use of the word “around”. However, it is not necessary that the will to defend the decisive motive of the act of self- defense ; it is enough if he does not completely take a back seat to the other motives.

Parts of the literature reject this understanding of the subjective element of self-defense. It would make no sense to demand a defense intention, but to allow it to be sufficient that it just does not take a back seat to other motives. In practice, the requirement of defensive intent is given up, because the absence can never be proven. Therefore, all the cases in question were decided in favor of the person who relied on a ground of justification. It is also argued that, in the case of intent, knowledge of the objective elements of the offense giving rise to a criminal offense is sufficient to affirm willful action. In view of the "mirror image" of the facts and the grounds for justification, nothing more can be demanded than an awareness of the situation of justification.

Legal consequences if the subjective element of justification is missing

Jurisprudence and some of the legal doctrine assume that if the subjective element of justification is missing from a completed offense, punishment must be given. They argue with the statutory system: Although objectively justified You must act the perpetrator, but without subjective justification element, he was in a reverse permission facts wrong . In the case of a legal error, the perpetrator mistakenly imagines circumstances which, if they exist, would be justified. If he lacks the subjective element of justification, he erroneously assumes that there are no justifying circumstances. According to the prevailing opinion, the legal consequences of the error are assessed according to Section 16 of the Criminal Code, so that there is no criminal liability for an intentional offense. If, however, the ignorance of an actually non-existent justification situation does not burden the perpetrator, then conversely the ignorance of an actually objectively given justification situation cannot relieve him .

The predominant view in legal theory only assumes a penalty for attempt in the absence of the subjective defense element. She argues that in such cases, although the perpetrator performs a legally disapproved act, there is no legally disapproved success because of the objective justification. This limited realization of injustice corresponds to the situation of the attempt. In addition, it is not correct to claim that the offender who found himself in the error of the permission would be completely exonerated. It is true that his motivation that is true to the law is rewarded insofar as there is no deliberate criminal offense. The factual success justifies a starting point for criminal liability from the point of view of negligence. This differentiation must be consistently maintained in the opposite direction. The objectively justified success cannot be used as a basis for punishment if the subjective element of justification is missing. It is true that the act of hostility to the law remains; Here, however, it would seem systematically preferable to accept an unsuitable attempt, since the factual success cannot be brought about in an unlawful manner due to objective justification.

Putative self-defense

Putativnotwehr is an alleged self-defense situation (from Latin putare = to believe). Here the defender mistakenly believes he is exposed to a self-defense situation. It is therefore a case of a legal error . According to the prevailing opinion, Section 16 (1) sentence 1 of the Criminal Code applies, which is why the defense lawyer acts without intent and therefore at most makes himself liable to prosecution for negligent behavior.

Emergency excess according to § 33 StGB

If the perpetrator exceeds the limits of self-defense out of confusion, fear or horror, he will not be punished.

If the requirements of Section 32 of the Criminal Code are not met, the defense counsel may be impunity under Section 33 of the Criminal Code. This presupposes the existence of an emergency excess. It is recognized in jurisprudence that such a case comes into question if the perpetrator exceeds the limit of the necessary defense (intensive emergency defense excess). It is disputed whether an excess is also possible if the characteristic of the presence of the attack is missing (extensive emergency response excess).

Intense emergency defense excess

An intense emergency defense excess occurs, for example, when the defender kills the attacker, although he could have made him incapable of attack with a non-life-threatening blow. Since the act of self-defense is not required, the perpetrator is not acting justified by Section 32 of the Criminal Code. However, impunity can result from Section 33 of the Criminal Code. According to the prevailing view in jurisprudence, this is a reason for excuse, according to a contrary view, a personal reason for exclusion from punishment . According to both views, however, participation in the excess act is punishable due to Section 29 StGB.

On the one hand, the regulation of Section 33 StGB is intended to do justice to the exceptional psychological situation in which the attacked person finds himself as a result of the attack. On the other hand, the defender acts out of a legally approved motive, the defense of his property. After all, the actions of the defense counsel represent a comparatively low threat to legal peace, as they only react to the illegal actions of the attacker.

Section 33 of the Criminal Code presupposes that the defense counsel acts out of an asthenic affect , for example out of confusion, fear or horror. If the perpetrator is carried away by sthenic (powerful) affects such as anger , anger , eagerness to fight, jealousy or self-esteem addiction to an intense excess of emergency defense, he is fundamentally fully liable. At the level of a sentencing rule, however, cases of sthenic affects can be taken into account. If the perpetrator of a manslaughter acts out of anger, this can lead to the acceptance of a less serious case ( Section 213 StGB). If asthenic and sthenic affects come together, this does not prevent the application of Section 33 of the Criminal Code if it is a matter of a set of motives in which the asthenic affects do not play a completely subordinate role.

An excused violation of self-defense within the meaning of Section 33 StGB is out of the question in the case of intentional provocation, since the right to self-defense does not apply in such cases. In the case of merely negligent self-defense provocation, however, Section 33 of the Criminal Code is generally applicable.

Section 33 of the Criminal Code, similar to Section 32 of the Criminal Code, does not apply if there is a clear disproportion between the property of the defense counsel and that of the attacker, as this makes the act accusable.

Extensive emergency defense excess

An extensive emergency defense excess occurs when the defender exceeds the time limits of self-defense, i.e. acts at a time when an attack is not present. This is the case, for example, if the attacked person shoots his attacker with a pistol, although the attacker has already given up his attack when he sees the weapon.

According to the prevailing opinion, § 33 StGB does not apply to the extensive excess of emergency defense. This view argues that Section 33 of the Criminal Code presupposes the existence of a self-defense situation, since otherwise there is no self-defense, so that its limits cannot be exceeded.

On the other hand, Section 33 of the Criminal Code also applies a contrary view to the extensive excess of emergency defense, since the excessive defense from asthenic affects can then also make the offense no longer subject to reproach.

Finally, a mediating opinion differentiates: If the defense takes place before there is an attack, it is a prematurely extensive excess of emergency defense. Section 33 of the Criminal Code does not intervene here because there is no attack that could lead to an asthenic affect. The purpose of the standard is therefore irrelevant here. If, on the other hand, the defense does not take place until after the attack has ended, it is a subsequent extensive emergency defensive excess. Here the psychological situation corresponds to that of the intense excess of emergency defense, so that an equal assessment is required.

Putative emergency excess

An excess of putative emergency defenses is present when someone mistakenly imagines an attack and with his defensive act exceeds the limits of defense that would have been allowed to him in the existing self-defense situation out of confusion, fear or horror. Section 33 of the Criminal Code does not apply to this, as it presupposes an actual self-defense situation. According to the prevailing opinion, the legal norm does not apply in an analogous manner, since the interests are not comparable.

Requirements of self-defense according to § 227 BGB

(1) An act required by self-defense is not unlawful.

(2) Self-defense is the defense that is required to avert a current unlawful attack on oneself or another.

Section 227 of the BGB contains a right of self-defense that is structured parallel to Section 32 of the Criminal Code, which is why both provisions are essentially interpreted in the same way. Like Section 32 of the Criminal Code, Section 227 of the BGB requires the existence of a self-defense situation and a necessary and required self-defense act. In addition, the prevailing view of the defender must act with the will to defend himself.

literature

  • Christian F. Majer, Guido Ernst: Fatal violence to ward off property and property violation as self-defense? In: Law Studies & Exams . Edition 2/2016. Tübingen 2016, p. 58-62 ( PDF ).
  • Joachim Renzikowski: State of emergency and self-defense . Duncker and Humblot, Berlin 1994, ISBN 3-428-08056-4 .
  • Christian Rückert: Effective self-defense and self-defense . Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-155292-2 .

Web links

Individual evidence

  1. ^ Digest 43, 15, 1.
  2. ↑ Volker Erb: § 32 , Rn. 10. In: Bernd von Heintschel-Heinegg (Ed.): Munich Commentary on the Criminal Code . 3. Edition. tape 1 : §§ 1–37 StGB. CH Beck, Munich 2017, ISBN 978-3-406-68551-4 .
  3. ↑ Helmut Grothe: § 227 , Rn. 2. In: Franz Säcker (Ed.): Munich Commentary on the Civil Code . 7th edition. tape 1 : §§ 1–240, ProstG, AGG. CH Beck, Munich 2015, ISBN 978-3-406-66540-0 .
  4. ↑ Sascha Lanzrath, Folke Großes Deters: Emergency Aid by Interfering with the Legal Assets of the Attacked Person ? . In: Higher Judicial Jurisdiction in Criminal Law 2011, p. 161.
  5. ↑ Georg Freund: Criminal Law General Part: Personal Criminal Acts . 2nd Edition. Springer, Berlin 2009, ISBN 978-3-540-79397-7 , § 3, marginal no. 85-86.
  6. ↑ Christian Jäger: The dualistic understanding of self-defense and its consequences for the right to defense - at the same time an investigation into the relationship between the doctrine of guarantors and the socio-ethical restrictions of the right of self-defense . In: Goldtdammer's Archive for Criminal Law 2016, p. 258.
  7. ↑ Volker Erb: § 32 , Rn. 18. In: Bernd von Heintschel-Heinegg (Ed.): Munich Commentary on the Criminal Code . 3. Edition. tape 1 : §§ 1–37 StGB. CH Beck, Munich 2017, ISBN 978-3-406-68551-4 .
  8. ↑ Volker Erb: § 32 , Rn. 34. In: Bernd von Heintschel-Heinegg (Ed.): Munich Commentary on the Criminal Code . 3. Edition. tape 1 : §§ 1–37 StGB. CH Beck, Munich 2017, ISBN 978-3-406-68551-4 .
  9. ↑ Volker Erb: § 32 , Rn. 55. In: Bernd von Heintschel-Heinegg (Ed.): Munich Commentary on the Criminal Code . 3. Edition. tape 1 : §§ 1–37 StGB. CH Beck, Munich 2017, ISBN 978-3-406-68551-4 .
  10. ↑ Bernd Hecker: Comment on OLG Hamburg, decision of April 5, 2012, 3-14/12 (Rev). In: Juristische Schulung 2012, p. 1039.
  11. ↑ Christian Jäger: Comment on AG Erfurt, judgment of September 18, 2013, 910 Js 1195/13 - 48 Ds . In: Legal worksheets 2014, p. 472.
  12. ↑ Kristian Kühl: Attack and Defense in Self-Defense. In: Jura 1993, p. 57 (59).
  13. ↑ Joachim Kretschmer: Self-defense (§ 32 StGB) and omission (§ 13 StGB) - a reciprocal relationship between two legal figures . In: Juristische Arbeitsblätter 2015, p. 589.
  14. ↑ Walter Perron: § 32 , Rn. 6. In: Adolf Schönke, Horst Schröder, Albin Eser (eds.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  15. ↑ Thomas Fischer: Penal Code with ancillary laws . 65th edition. CH Beck, Munich 2018, ISBN 978-3-406-69609-1 , § 32, Rn. 11.
  16. ↑ Walter Perron: § 32 , Rn. 8. In: Adolf Schönke, Horst Schröder, Albin Eser (ed.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  17. ↑ Kristian Kühl: Attack and Defense in Self-Defense. In: Jura 1993, p. 118 (125).
  18. ↑ Peter Kasiske: Justification and limits of emergency aid . In: Jura 2004, p. 832.
  19. ^ Johannes Kaspar: The criminal liability of the forced emergency aid . In: Legal Training 2014, p. 769.
  20. ^ Johannes Kaspar: The criminal liability of the forced emergency aid . In: Juristische Schulung 2014, p. 769 (773–775).
  21. ↑ Volker Erb: § 32 , Rn. 104. In: Bernd von Heintschel-Heinegg (Ed.): Munich Commentary on the Criminal Code . 3. Edition. tape 1 : §§ 1–37 StGB. CH Beck, Munich 2017, ISBN 978-3-406-68551-4 .
  22. ↑ Kristian Kühl: Criminal Law General Part . 7th edition. Vahlen, Munich 2012, ISBN 978-3-8006-4494-0 , § 7, Rn. 40.
  23. ↑ Walter Perron: § 32 , Rn. 14. In: Adolf Schönke, Horst Schröder, Albin Eser (eds.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  24. ↑ BGHSt 39, 133 .
  25. ↑ BGHSt 48, 255 .
  26. ↑ BGHSt 48, 207 (209).
  27. ↑ Urs Kindhäuser: § 32 , Rn. 53. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  28. ↑ BGHSt 39, 133 (136).
  29. ↑ Walter Perron: § 32 , Rn. 17. In: Adolf Schönke, Horst Schröder, Albin Eser (ed.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  30. ↑ Urs Kindhäuser: § 32 , Rn. 54. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  31. ↑ Thomas Fischer: Penal Code with ancillary laws . 65th edition. CH Beck, Munich 2018, ISBN 978-3-406-69609-1 , § 32, Rn. 21st
  32. ↑ Günter Spendel: § 32 , Rn. 57. In: Heinrich Wilhelm Laufhütte (Ed.): Leipzig Commentary on the Criminal Code. Vol. 1: §§ 32 to 55 . 12th edition. De Gruyter, Berlin 2006, ISBN 978-3-89949-231-6 .
  33. ↑ Walter Perron: § 32 , Rn. 19-20. In: Adolf Schönke, Horst Schröder, Albin Eser (eds.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  34. ^ Walter Gropp: Criminal Law General Part . 4th edition. Springer, Berlin 2015, ISBN 3-642-38125-1 , § 6, Rn. 71.
  35. ↑ Urs Kindhäuser: Criminal Law General Part . 7th edition. Nomos, Baden-Baden 2015, ISBN 978-3-8487-0605-1 , § 16, marginal no. 22nd
  36. ↑ Urs Kindhäuser: § 32 , Rn. 61. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  37. ↑ a b BGHSt 3, 217 .
  38. ↑ Claus Roxin: Justification and excuse as differentiating from other reasons for exclusion from punishment . In: Juristische Schulung 1988, p. 425 (428).
  39. ↑ Harro Otto: Basic Course Criminal Law: General Criminal Law . 7th edition. De Gruyter, Berlin 2012, ISBN 3-89949-139-4 , § 8, Rn. 20th
  40. ↑ Andreas Hoyer: The legal institution of self-defense . In: Juristische Schulung 1988, p. 89 (96).
  41. ↑ Robert Haas: Self-defense and emergency aid: on the principle of defense against illegal attacks: historical development and today's problems . Peter Lang, Frankfurt 1978, ISBN 978-3-261-02449-7 , pp. 236 .
  42. ↑ BGHSt 4, 161 (164).
  43. ↑ BGHSt 21, 334 (334–335).
  44. ↑ BGHSt 24, 125 (132).
  45. ↑ Elmar Vitt: Thoughts on the concept of “legality of the official act” in Section 113 of the Criminal Code . In: Journal for the entire criminal law science 1994, p. 581 (592).
  46. ↑ Heinz Seebode: The legality of the official act in § 113 Abs. 3 and 4 StGB . Frankfurt 1988, ISBN 978-3-631-40335-8 , pp. 195 .
  47. ↑ Hans-Joachim Hirsch: Before § 32 , Rn. 147. In: Heinrich Wilhelm Laufhütte (Ed.): Leipzig Commentary on the Criminal Code. Vol. 1: §§ 32 to 55 . 12th edition. De Gruyter, Berlin 2006, ISBN 978-3-89949-231-6 .
  48. ↑ Thomas Fischer: Penal Code with ancillary laws . 65th edition. CH Beck, Munich 2018, ISBN 978-3-406-69609-1 , § 113, Rn. 11.
  49. ↑ Volker Erb: Munich Commentary on the StGB . 2nd Edition. 2011, § 32, Rn. 175 .
  50. ↑ BGHSt 60, 253 . Commentary on the judgment: Nikolaus Bosch: illegality of the attack within the meaning of Section 32 (2) StGB . In: Jura 2015, p. 1392.
  51. ↑ BGHSt 5, 245 .
  52. ↑ BGH, judgment of April 25, 2013, p. 2133, 4 StR 551/12 = Neue Juristische Wochenschrift 2013, p. 2133. Annotations of the judgment: Wolfgang Mitsch: Dangerous interference in road traffic and self-defense . In: Juristische Schulung 2014, p. 593, Janique Brüning: Self-defense and excess of self-defense - the will to defend in the event of "panic-related" excess of self-defense . In: Journal for legal studies 2013, p. 511, Christian Jäger: Zeckenalarm . In: Legal worksheets 2013, p. 708.
  53. ↑ Urs Kindhäuser: § 32 , Rn. 75. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  54. ↑ Urs Kindhäuser: § 32 , Rn. 88. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  55. ↑ BGH, judgment of June 22, 2016, 5 StR 138/16 = New Journal for Criminal Law 2016, p. 593.
  56. ↑ Kristian Kühl: Attack and Defense in Self-Defense. In: Jura 1993, p. 118 (121).
  57. ↑ Günter Warda: The suitability of the defense as an element of justification in self-defense (§§ 32 StGB, 227 BGB). In: Jura 1990, p. 344.
  58. ↑ BGHSt 24, 356 (358).
  59. ↑ BGHSt 27, 336 (337).
  60. ↑ a b Kristian Kühl: Criminal Law General Part . 7th edition. Vahlen, Munich 2012, ISBN 978-3-8006-4494-0 , § 7, Rn. 4th
  61. ↑ a b Christian F. Majer, Guido Ernst: Deadly violence to ward off property and property violation as self-defense? In: Law Studies & Exams . Edition 2/2016. Tübingen 2016, p. 58-62 ( (PDF) ).
  62. ↑ Manfred Heinrich: The use of self-protection systems in the light of criminal law . In: Journal for international criminal law dogmatics 2010, p. 183 (195).
  63. ^ Karl-Ludwig Kunz: The automated counter-defense . In: Goldtdammer's Archive for Criminal Law 1984, p. 539.
  64. ↑ Kristian Kühl: § 32 , Rn. 11a. In: Kristian Kühl, Martin Heger: Criminal Code: Comment . 29th, revised edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 .
  65. ↑ BGHSt 42, 97 (102).
  66. ↑ Volker Krey: On the restriction of the right of self-defense in the defense of property . In: JuristenZeitung 1979, p. 702 (714).
  67. ↑ Urs Kindhäuser: § 32 , Rn. 100-101. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  68. ↑ BGHSt 24, 356 .
  69. ↑ Thomas Fischer: Penal Code with ancillary laws . 65th edition. CH Beck, Munich 2018, ISBN 978-3-406-69609-1 , § 32, Rn. 36.
  70. ↑ Claus Roxin: The "social-ethical constraints" of the self-defense law - an attempt to balance - . In: Journal for the entire criminal law science 1981, p. 68 (95).
  71. ↑ Friedrich-Wilhelm Krause: Self-defense against innocent attacks and minor attacks . In: Hans Hirsch, Günther Kaiser, Helmut Marquardt (eds.): Memorial for Hilde Kaufmann . De Gruyter, Berlin 1986, ISBN 3-11-010463-6 , p. 673 (686) .
  72. ↑ BGHSt 24, 356 .
  73. ↑ a b Thomas Rönnau: Basic knowledge - criminal law: "Social ethical" restrictions on self-defense . In: Legal Training 2012, p. 404.
  74. ↑ BayObLG, judgment of August 5, 1964 = Neue Juristische Wochenschrift 1965, p. 163.
  75. ↑ OLG Stuttgart, German legal journal 1949, p. 42.
  76. ↑ Claus Roxin: Criminal Law General Part . 4th edition. 1: Basics, the structure of the crime theory. CH Beck, Munich 2006, ISBN 3-406-53071-0 , § 15 Rn. 91.
  77. ^ Rudolf Rengier: Criminal Law General Part . 9th edition. CH Beck, Munich 2017, ISBN 978-3-406-71134-3 , § 18, Rn. 59.
  78. ↑ Helmut Satzger: The influence of the ECHR on the German criminal law and criminal procedure law - basics and important individual problems . In: Jura 2009, p. 759 (762).
  79. ↑ Volker Krey: On the restriction of the right of self-defense in the defense of property . In: JuristenZeitung 1979, p. 702 (708).
  80. ^ Jörg Eisele: Criminal Law AT: Self-defense against a child . In: Legal Training 2017, p. 81.
  81. ↑ BSGE 84, 54 .
  82. ^ BGH, judgment of September 25, 1974, 3 StR 159/74 = Neue Juristische Wochenschrift 1975, p. 62.
  83. ^ Gerd Geilen: Self-defense and excess of emergency defense . In: Jura 1981, p. 370 (374).
  84. ↑ Claus Roxin: The “socio-ethical restrictions” of the right of self-defense - attempt to take stock - . In: Journal for the entire criminal law science 1981, p. 68 (101).
  85. ↑ Wolfgang Wohlers: Restrictions on the right to self-defense within social proximity . In: JuristenZeitung 1999, p. 434 (441).
  86. ^ BGH, judgment of June 30, 2004, 2 StR 82/04 = New Journal for Criminal Law 2005, p. 31.
  87. ↑ Guy Beaucamp: §§ 32, 34 StGB as a basis for authorization for police intervention . In: Juristische Arbeitsblätter 2003, p. 402.
  88. ^ Ali Norouzi: Torture in emergency aid - required ?! In: Juristische Arbeitsblätter 2005, p. 306 (308-310).
  89. ^ Christian Fahl: New social-ethical restriction of self-defense: Torture . In: Jura 2007, p. 743 (744).
  90. ↑ Christian Jäger: Torture and shooting down planes - breaking the rule of law or legal requirements? In: Legal worksheets. In: Juristische Arbeitsblätter 2008, p. 678.
  91. ^ LG Frankfurt am Main, judgment of December 20, 2004 = Neue Juristische Wochenschrift 2005, p. 692 (693).
  92. ↑ Helmut Satzger: The protection of unborn life through rescue actions by third parties . In: Juristische Schulung 1997, p. 800.
  93. ↑ Albin Eser: § 218a , Rn. 14. In: Adolf Schönke, Horst Schröder, Albin Eser (eds.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  94. ↑ BGHSt 48, 207 .
  95. ^ BGH, judgment of August 4, 2010, 2 StR 118/10 = Neue Zeitschrift für Strafrecht 2011, p. 82 (83).
  96. ↑ Walter Perron: § 32 , Rn. 59. In: Adolf Schönke, Horst Schröder, Albin Eser (ed.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  97. ↑ a b BGH, judgment of November 2, 2005, 2 StR 237/05 = Neue Zeitschrift für Strafrecht 2006, p. 332
  98. ^ Günther Stratenwerth, Lothar Kuhlen: Criminal law general part: The criminal offense . 6th edition. Franz Vahlen, Munich 2011, ISBN 978-3-8006-4167-3 , § 9, marginal no. 88
  99. ↑ BGHSt 42, 97 .
  100. ↑ BGHSt 26, 256 .
  101. ↑ Wolfgang Mitsch: Self-defense against negligently provoked attack - BGH, NStZ 2001, 143 . In: Juristische Schulung 2001, p. 751.
  102. ↑ Urs Kindhäuser: Endangerment as a criminal offense: legal theoretical investigations into the dogmatics of abstract and concrete dangerous offenses . Klostermann, Frankfurt am Main 1989, ISBN 3-465-01862-1 , p. 117-118 .
  103. ^ Friedrich-Christian Schroeder: Self-defense as an indicator of basic political views . In: Friedrich-Christian Schroeder (Hrsg.): Festschrift for Reinhart Maurach on his 70th birthday . CF Müller, Karlsruhe 1972, ISBN 3-7880-3325-8 .
  104. ^ Gunther Arzt: Self-defense law and excess of self-defense when the defense is provoked . In: Juristische Rundschau 1980, p. 211.
  105. ^ BGH, judgment of November 22nd, 2000, 3 StR 331/00 = Neue Juristische Wochenschrift 2001, p. 1075.
  106. ↑ Urs Kindhäuser: § 32 , Rn. 130. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  107. ↑ Urs Kindhäuser: § 32 , Rn. 122. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  108. ↑ Christian Jäger: The dualistic understanding of self-defense and its consequences for the right to defense - at the same time an investigation into the relationship between the doctrine of guarantors and the socio-ethical restrictions of the right of self-defense . In: Goldtdammer's Archive for Criminal Law 2016, p. 258 (263).
  109. ^ Michael Lindemann, Tilman Reichling: The treatment of the so-called defense provocation according to the principles of the actio illicita in causa . In: Juristische Schulung 2009, p. 496.
  110. ^ Rudolf Rengier: Criminal Law General Part . 9th edition. CH Beck, Munich 2017, ISBN 978-3-406-71134-3 , § 18, Rn. 101-102.
  111. ↑ Volker Erb: § 32 , Rn. 239. In: Bernd von Heintschel-Heinegg (Ed.): Munich Commentary on the Criminal Code . 3. Edition. tape 1 : §§ 1–37 StGB. CH Beck, Munich 2017, ISBN 978-3-406-68551-4 .
  112. ↑ BGHSt 5, 245 .
  113. ^ Klaus Geppert: The subjective elements of justification . In: Jura 1995, p. 103 (104-105).
  114. ^ Rudolf Rengier: Criminal Law General Part . 9th edition. CH Beck, Munich 2017, ISBN 978-3-406-71134-3 , § 18, Rn. 108.
  115. ↑ Urs Kindhäuser: Endangerment as a criminal offense: legal theoretical investigations into the dogmatics of abstract and concrete dangerous offenses . Klostermann, Frankfurt am Main 1989, ISBN 3-465-01862-1 , p. 114-115 .
  116. ↑ Kristian Kühl: Attack and Defense in Self-Defense (conclusion). In: Jura 1993, p. 233 (234).
  117. ^ Günther Stratenwerth, Lothar Kuhlen: Criminal law general part: The criminal offense . 6th edition. Franz Vahlen, Munich 2011, ISBN 978-3-8006-4167-3 , § 9, marginal no. 150.
  118. ↑ BGHSt 2, 111 .
  119. ↑ BGHSt 3, 194 .
  120. ^ BGH, judgment of October 6, 2004, 1 StR 286/04 = Neue Zeitschrift für Strafrecht 2005, p. 332.
  121. ↑ Michael Köhler: Criminal Law: General Part . Springer, Berlin 1997, ISBN 3-540-61939-9 , pp. 323 .
  122. ↑ Heiner Alwart: The concept of the bundle of motives in criminal law . In: Goldtdammer's Archive for Criminal Law 1983, p. 433 (454–455).
  123. ↑ Thomas Fischer: Penal Code with ancillary laws . 65th edition. CH Beck, Munich 2018, ISBN 978-3-406-69609-1 , § 32, Rn. 27.
  124. ↑ Claus Roxin: Criminal Law General Part . 4th edition. 1: Basics, the structure of the crime theory. CH Beck, Munich 2006, ISBN 3-406-53071-0 , § 14 Rn. 104.
  125. ↑ BGH, judgment of November 2, 2011, 2 StR 375/11 = New Journal for Criminal Law 2012, p. 272.
  126. ↑ Urs Kindhäuser: Section 33 , Rn. 4. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  127. ↑ BGHSt 3, 194 (197).
  128. ↑ Urs Kindhäuser: Section 33 , Rn. 5-6. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  129. ↑ Bernd Hecker: Criminal Law AT: Excess of emergency defense in the case of culpably provoked attack . In: Legal Training 2016, p. 177.
  130. ↑ BGHSt 27, 336 (339).
  131. ↑ Jürgen Sauren: To the violation of the self-defense law . In: Jura 1988, p. 567 (570).
  132. ↑ Bernd Müller-Christmann: The emergency excess . In: Juristische Schulung 1989, p. 717.
  133. ↑ Werner Beulke: The failed self-defense for material defense . In: Jura 1988, p. 641 (643).
  134. ↑ Urs Kindhäuser: Section 33 , Rn. 11. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  135. ↑ BGH, judgment of June 8, 1983, 3 StR 178/83 = New Journal for Criminal Law 1983, p. 453.
  136. ↑ Manfred Fuchs: § 227 , Rn. 1. In: Thomas Heidel, Rainer Hüßtege, Heinz-Peter Mansel, Ulrich Noack (eds.): Nomos Commentary BGB: General Part, EGBGB . 3. Edition. Nomos, Baden-Baden 2016, ISBN 978-3-8240-0642-7 .
  137. ↑ BGHZ 92, 357 (359).
  138. ↑ Klaus Schreiber: The justification reasons of the BGB . In: Jura 1997, p. 29 (30).