Prohibition of analogy

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The prohibition of analogy is a primarily criminal legal principle to prevent the punishment of an act that is not prohibited by law. It is aimed at an act that a judge may have classified as “punishable”, which is similar to a criminal norm, but does not fully comply with it. The prohibition of analogous application of the law also applies, and in particular, if there is obviously a criminal liability loophole.

Substantive criminal law

The prohibition of the corresponding application of law only applies to the area of ​​substantive criminal law, i.e. H. not for the law of criminal procedure (please note, however, the case law of the Federal Constitutional Court on the rule of law prohibition of analogy with sovereign interference). The prohibition of analogy is derived from the principle nulla poena sine lege (no punishment without law), which is broadly defined in Art. 7 (1) ECHR , in Germany in Art. 103 (2) Basic Law or § 1 Criminal Code , in Austria in § 1 of the Austrian Criminal Code . While in all other areas of law unplanned loopholes may be closed by the legal practitioner by analogy, loopholes in criminal law are always at the expense of the state's right to punish. The Federal Constitutional Court, for example, viewed the opinion of the courts of first instance that psychologically mediated coercion is sufficient for the term “violence” in the context of coercion ( Section 240 StGB) as a violation of the prohibition of analogy.

However, analogies that work in favor of the defendant do not violate the prohibition of analogy, e.g. B. for justification or reasons to exclude guilt.

In the view of the legislature, the interpretation of indefinite legal terms by the court should neither be a case of analogous application of the law nor of an indefinite criminal law ( Art. 103 (2) GG - nulla poena sine lege ). The interpretation of the element of the offense "particularly serious case of theft" in Section 243, Paragraph 1, Sentence 1 of the Criminal Code is permissible through comparative application of the rule examples expressly named by the legislator for particularly serious cases in Section 243, Paragraph 1, Sentence 2 of the Criminal Code.

The Federal Constitutional Court ruled, however, to coercion under Section 240 of the Criminal Code that the expanded interpretation of the concept of violence in connection with sitting blockades violated Article 103 (2) of the Basic Law.

Alleged or actual violations of the prohibition of analogy can be dealt with by appeal or revision , if necessary by way of a constitutional complaint .

Analogy requirement during the Nazi era

At the time of National Socialism , the prohibition of analogies was repealed by the “Law amending the Criminal Code” of June 28, 1935 and instead codified the following in Section 2 of the German Criminal Code: “Anyone who commits an act which the law declares to be punishable or which according to the Basic idea of ​​a criminal law and, according to the healthy public feeling, deserves punishment. If no specific criminal law is directly applicable to the act, the act will be punished according to the law whose basic idea best applies to it ”. After the end of the Third Reich, the prohibition of analogy was anchored again in the Criminal Code and the Basic Law.


In the specialist literature on criminal law, it is predominantly assumed that the new Section 238, Paragraph 1, No. 5 of the Criminal Code, which uses the words “performs another comparable act”, does without the description of a specific offense and is therefore open to analogy with No. 1 to 4 invites (re-enactment vulgo stalking ), the limit of the requirement of certainty and the prohibition of analogy crosses.

Prohibition of analogy in public law and tax law

There is a prohibition of analogy not only in criminal law, but also in tax law and administrative law for interventions by the state in the legal sphere of the citizen.

Individual evidence

  1. BVerfG, decision of August 14, 1996, Az. 2 BvR 2088/93, full text = NJW 1996, 3146.
  2. a b BVerfG, decision of January 10, 1995, Az. 1 BvR 718/89, 1 BvR 719/89, 1 BvR 722/89, 1 BvR 723/89; BVerfGE 92, 1 , 14 et seq .-- Sit-in blockades II.
  3. RGBl. I, p. 839 .
  4. quoted in: Volker Epping: Grundrechte , Berlin 2010 p. 419.
  5. cf. only Lackner / Kühl, StGB, § 238 Rn. 5; Neubacher ZStW 118, 855, 870; Gazeas KJ 06, 247, 266; Vander, KritV 2006, 81, 89; Mitsch NJW 2007, 1237, 1239.
  6. BVerfG, judgment of January 8, 1985 , Az. 1 BvR 1050/84, Leitsatz = NJW 1985, 1891; BVerfG, judgment of August 15, 1996 , Az. 2 BvR 1075/96, Leitsatz = NJW 1996, 3145; a. A .: BFH, judgment of April 3, 2001 , Az. IX R 16/98, full text = DB 2001, 1756.