Adequacy
Adequacy (from Latin adequate - appropriate, corresponding) is a legal term . The question of adequacy serves as a narrowing criterion for questions of causality and attribution . According to the so-called adequacy theory, the injuring party does not have to take responsibility for events that, according to the normal view of life of an objective, informed third party, are completely beyond experience and expectation.
example
A textbook example is the causing of a fatal stroke by a minor defamation .
First of all, the question would arise whether the damaging event ( insult ) was causal for the “success” (fatal stroke) ( equivalence ). If this question is answered in the affirmative, the question of adequacy arises. Here it is examined whether the fatal stroke would have been foreseeable in any way had a minor insult as a result. This question is answered in the negative by the lawyers. The adequacy is thus a corrective to the equivalence theory, which is perceived as too far .
development
Carl Ludwig von Bar and Johannes von Kries are considered to be the founders of the adequacy theory.
The adequacy theory has been felt to be too far for some time now. The improbability of the occurrence of success alone is not a suitable feature to exclude liability. Therefore, the adequacy theory is again restricted in individual cases by the " protective purpose of the standard ". Here one asks whether it was the point and purpose of the standard to protect against such damage.
Adequacy in Criminal Law
According to this, only those causal processes are to be taken into account in the investigation of the offense that would be expected ex ante ( i.e. at the time of the offense) according to (optimal) empirical knowledge.
As a theory of causality, the ex-ante view of intentional crimes is rejected in German criminal law. Instead, it is based on evidence of causality from an ex post perspective (i.e. at the time of the offense).
This prevents a difficult, if not impossible, determination of causality, if one wanted to reconstruct all possible causal processes at the time of action between the offense and the offense. (In fact, from an ex-ante point of view, all realizations of the facts would be excluded with the addition of the principle in dubio pro reo .)
A consideration of the perpetrator's ignorance of certain circumstances that can only be identified later is taken into account in the intent assessment (cf. § 16 StGB).
Only in the case of crimes of negligence is the ex-ante perspective still used, as it is currently necessary to determine whether the causal course at the time of the action would have been foreseeable and avoidable by the possible perpetrator .
The adequacy is then to be examined as a question of the objective attribution of the crime to the success of the crime.
Social adequacy
Another aspect is the doctrine of social adequacy , which was initially developed by Hans Welzel as a justification . Like the permitted risk , socially adequate behavior, according to the prevailing opinion, already excludes the fact.
Adequacy in tort law
In strict liability (e.g. § 833 sentence 1 BGB - liability of the animal owner; § 7 StVG - liability of the motor vehicle owner), adequacy does not play a role: In pure strict liability it comes after h. M. does not rely on the adequacy because it is tailored to the fault due to the connection to the predictability. The decisive factor for the attribution is whether the success of the infringement is a specific effect of those dangers with regard to which legal transactions are to be kept harmless according to the meaning and purpose of the liability provision (protective purpose of the standard).
literature
- Paul Sourlas: Adequacy Theory and Standard Purpose Doctrine for the Establishment of Liability according to Paragraph 823 Paragraph 1 BGB , Duncker & Humblot, Berlin 1974, ISBN 3-428-03216-0 .
Web links
supporting documents
- ↑ Example based on Palandt / Heinrichs commentary on the BGB Preliminary remarks before Section 249 marginal no. 68 with further examples
- ^ Bar, Carl Ludwig von . In: German biography. Retrieved December 17, 2015.
- ↑ Equivalence, adequacy and the protective purpose of the standard: A deterrent example ( memento of October 25, 2008 in the Internet Archive ), accessed on April 15, 2010; LG Nuremberg NJW 1999, 3721
