Participation in a crime (Germany)

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The German Criminal normalized for intentional offenses more forms of participation in a criminal offense . It differentiates between perpetration and participation in order to determine as precisely as possible and adequately punish the injustice committed by the person involved. This distinguishes it from negligence offenses and from regulatory offense law , which only provide for a criminal offense due to the figure of the unitary offender. The basics of participation are regulated in the general part of the Criminal Code (StGB) in § 25 - § 31 StGB.

A person who has mastered the course of a crime acts as a criminal. This can be done by taking all steps of the act independently or by counting her strange behavior as her own. Section 25 of the Criminal Code provides for sole, joint and indirect perpetrators as forms of perpetration.

When participating, one person's contribution to the crime is limited to provoking another person's decision to commit an offense or to supporting him in his / her act. The law describes the former as incitement ( Section 26 StGB), the latter as aiding and abetting ( Section 27 StGB).

History of origin

The distinction between different categories of participation is rooted in late medieval Italian criminal law. It was taken up by the Constitutio Criminalis Carolina of 1532.

The separation made by the German penal code is based on the provisions of the French Code pénal of 1810 and the Prussian penal code of 1851. The Prussian penal code forms the basis of the Reich penal code that came into force in 1872 . This only contained rough and incomplete regulations on participation theory. Therefore, the demarcation between perpetration and participation in German law was extremely controversial over a long period of time. It was not until January 1, 1975 that the legislature created a set of norms describing the possible forms of participation and their requirements.

Basics of participation theory

Perpetrator term

The concept of perpetrator represents a fundamental concept of participation theory. In Germany, unlike in other legal systems, the only possible perpetrator is a natural person ; there is therefore no criminal law for legal persons . The definition of the term perpetrator has long been controversial in jurisprudence.

According to the doctrine of the extensive term perpetrator, the perpetrator is the one who violates the legal interest protected by a criminal offense. According to this definition, the forms of incitement and aiding and abetting are basically also criminal acts, since both promote a violation of legal interests. However, since the law provides special regulations with special requirements for these forms of participation, it limits the responsibility of the perpetrators in this regard. The extensive concept of perpetrator was represented in the older jurisprudence. However, the legislature did not follow this understanding of the term “ perpetrator” by defining the commission of the act as a prerequisite for perpetration in Section 25 (1) Sentence 1 Alternative 1 of the Criminal Code. Therefore instigators and accomplices cannot be perpetrators.

The restrictive term “perpetrator” contrasts with the extensive term “perpetrator”. According to this, the bringing about of success is not sufficient for the assumption of perpetration; rather, further circumstances must be added that justify an assessment of a behavior as criminal. According to this approach, the criminality of incitement and aiding and abetting broaden the criminal liability. Within the doctrine of the restrictive term “perpetrator”, different approaches emerged in order to determine the requirements for a perpetrator. According to the formal objective theory, it is necessary that the perpetrator fulfills the characteristics of a statutory offense himself. The legislature did not follow this view either, in that it legally recognized the indirect perpetrator and the accomplice, since according to this, the perpetrator can also be regarded as a perpetrator who does not carry out an offense himself. Instead, he based the Criminal Code on a material, objective, restrictive concept of perpetrators. According to this, the perpetrator is the one who controls the crime.

Accessory

If more than one person is involved in a crime, the contributions of each person involved are legally related to each other. This principle is particularly pronounced in the area of ​​participation: the criminal liability of a participant presupposes that another unlawfully realizes the offense of a criminal law. His punishment is also based on that of the main offender. Legal studies refer to this connection as accessory. However, the legal context of the participations is restricted several times by the Criminal Code.

Principle of debt independence, § 29 StGB

According to § 29 StGB, everyone involved is punished solely according to his own guilt . The culpability of the commission is therefore determined individually for each participant. Therefore commit, for example, two people an act jointly as an accomplice, it is irrelevant to the criminal liability of one if the other offense was committed in a blame exclusionary mistake of law ( § 17 subject to the Criminal Code) or blame incompetent is ( § 20 of the Criminal Code). The same applies to personal exclusionary reasons , such as withdrawing from the attempt ( Section 24 of the Criminal Code).

Special personal characteristics

Accessoryity is also relaxed if the offense committed is linked to particular personal characteristics. According to Section 14 (1) of the Criminal Code, these are special personal characteristics, relationships or circumstances. This applies to elements of the offense that are not linked to the objective injustice of the act, but to the person of the perpetrator. Therefore, special personal characteristics are also referred to as perpetrator-related characteristics in law. Such is the case with the murder characteristic ( Section 211 StGB) of greed. Section 28 of the Criminal Code applies to special personal characteristics .

The perpetrator-related characteristics are contrasted with crime-related characteristics. These relate to the objective injustice of the act. Such a feature is, for example, the murder feature of treachery. Section 28 of the Criminal Code does not apply to these characteristics .

Justifying the penalty, Section 28 Paragraph 1 StGB

Some criminal offenses can only be committed if the person involved fulfills a special personal characteristic.

This requirement applies to special offenses . Such an offense can only be committed by a person with a certain qualification. This applies, for example, to perversion of the law ( Section 339 StGB), which can only be committed by a judge , public official or arbitrator . The situation is similar with infidelity ( Section 266 of the Criminal Code). This presupposes that the perpetrator has an obligation to look after the assets . If the person involved in such an offense lacks the necessary special personal characteristic, he can at most make himself liable for participation in this offense.

Personal crimes are also linked to special personal characteristics . These require that the person involved commits the offense personally. For example, the perpetrator of a drunk driving ( Section 316 StGB) can only be a vehicle driver .

If a particular personal characteristic that justifies the criminal liability of an offender is missing in the participant, this has the consequence, according to Section 28 (1) of the Criminal Code, that although he is punished for participating in a crime, his sentence is reduced in accordance with Section 49 (1) of the Criminal Code .

Increasing punishment, Section 28 (2) StGB

Some of the offenses that are linked to personal characteristics do not consider their presence as a criminal offense, but as a circumstance that aggravates the criminal offense. This is the case, for example, with bodily harm in office ( Section 340 StGB). According to this, a higher threat of punishment than simple bodily harm ( Section 223 StGB) is threatened whoever commits or allows to commit bodily harm while exercising his service or in relation to his service.

Pursuant to Section 28 (2) of the Criminal Code, the presence of a personal characteristic that aggravates the punishment is only relevant for the criminal liability of the party involved. If a person who is not a public official incites an act according to Section 340 StGB , the public official will be punished for bodily harm in office and the participant for inciting simple bodily harm. Jurisprudence refers to this legal consequence as a shift in the facts.

Differentiation between perpetration and participation

In jurisprudence it has long been disputed which criteria should be used to distinguish perpetration and participation. In particular, the distinction between complicity and aiding and abetting presents practical difficulties, as both are characterized by the fact that those involved promote the factual action of another. A similar problem arises in the case of indirect perpetration and incitement: in both cases one person induces another to realize the objective elements of a crime.

Demarcation in doing

For a long period of time, the case law advocated a delimitation based on the will of the person involved for committing offenses: According to this, the perpetrator was whoever wanted a crime as his own. She referred to this will as animus auctoris ( Latin will of an author). The participant lacked this will, he only acted with animus socii (Latin will of a participant). This approach was clearly expressed in the bathtub case of 1940. The subject of this was the killing of an infant by a woman at the urging of her mother. The Reichsgericht condemned the woman for aiding and abetting the killing of children ( Section 217 of the old version of the German Criminal Code), as she donated her contribution exclusively to the mother, but lacked the will of the perpetrator herself. The Federal Court of Justice ruled similarly in the Staschinski case of 1962. In this case, an agent personally killed several people on behalf of the KGB , but was only convicted of aiding and abetting murder, as he had completely subordinated his contribution to the KGB's ideas.

The legal doctrine objected to this jurisprudence that the elements of the will could hardly be determined with certainty and that the results of the process on this point would be rather random. The jurisprudence would also be in contradiction to facts that consider an act of benefit to others to be culpable, such as killing on request ( Section 216 StGB). The prevailing literature view therefore favors a demarcation of perpetration and participation along the criteria for determining the rule of the perpetrator. This teaching was shaped in particular by the criminal law scholar Claus Roxin . According to this, the perpetrator is someone who holds the main course of the crime in hand and at least helps determine the course of the crime. This can be done by taking essential action steps by hand, directing the course of the crime based on superior knowledge, or assuming a key position within a division of labor. The participant lacks the dominant position of the perpetrator: he only provides subordinate services and does not control the crime.

The “subjective view” of the case law was largely abandoned with the amendment to Section 25 Paragraph 1 Alternative 1 StGB. According to this, a person who commits an act with his own hand is always a perpetrator. It is therefore no longer possible to deny a person who, as in the case studies mentioned, all of the elements of the offense in person, as a perpetrator, for lack of a corresponding direction of will. As a result, the jurisprudence now differentiates between perpetration and participation on the basis of numerous indications that are used by the followers of the doctrine of perpetration, such as the importance of the contribution to the crime in the overall event and the perpetration. However, she still assesses the perpetrator's interest in the act as an indication, the significance of which is determined in the context of the free judicial assessment of evidence according to the individual case. As a result, the opinions of jurisprudence and legal doctrine rarely diverge in the result, since the jurisprudence largely bases the delimitation of the forms of participation on objective criteria.

Delimitation in case of failure

It is also controversial in jurisprudence how perpetration and participation in the offense of omission can be differentiated. A demarcation on the basis of the perpetrator's rule cannot be transferred to this without further ado, since the neglecting perpetrator does not control what is happening, but just renounces it.

In some cases, the omission is generally assigned to a certain form of participation. According to one of the views justified by Roxin, the neglect is always the perpetrator, since the injustice of the offense is limited to violating an obligation to act. This view is referred to in jurisprudence as the doctrine of compulsory offenses. She is accused of failing to adequately take into account the distinction made in the law between perpetration and participation. According to a counter-opinion, the neglecting party can only be a participant if someone else commits an act by doing something, since only this person controls the event. This view is countered by the fact that with a general assumption of participation it is not possible to adequately appreciate the importance of the perpetrator in individual cases.

The criminal law scholars Gerald Grünwald , Armin Kaufmann and Hans Welzel took the view that the categories of perpetration and participation were not suitable for adequately assessing the failure. Therefore it was an independent form of participation.

According to the prevailing opinion, an omission can take place both as a perpetrator and as a participant. One view is based on the delineation of the two forms, but modifies their assessment: The neglecting person possesses criminality if it were possible for him to control what is happening and to prevent the realization of a legal offense without further ado. Another view, justified by Horst Schröder , differentiates on the basis of the guarantor position of the party involved: The person who, as the protector- guarantor , is obliged to protect an object from impairment, is a perpetrator due to his comprehensive obligations. In contrast, the person who, as the supervisor guarantee, is responsible for a source of danger is a participant. Similar to action, the jurisprudence differentiates between perpetration and participation on the basis of an overall assessment of the individual circumstances.

Perpetration

Direct perpetration, Section 25 Paragraph 1 Alternative 1 StGB

(1) Anyone who commits the crime himself ... will be punished as the perpetrator.

Section 25, Paragraph 1, Alternative 1 of the Criminal Code regulates direct perpetrators. Such is the case if the perpetrator realizes all of the elements of the offense in person. This applies, for example, if he coerces another personto commit robbery ( Section 249 StGB) and as a result takes something away from him. The legislature created this clarifying norm in order to limit the subjective understanding of the categories of participation that the case law expressed in some judgments.

The direct perpetration continues to include the case of secondary perpetrators. This is the case if several perpetrators of each other realize all of the elements of the offense in person. This is particularly conceivable in the case of negligent action, for example if a person negligently stores a weapon in an unsafe manner so that a third party takes it and thus kills others. In this case the criminal liability of the shooter for manslaughter ( Section 212 StGB) and the carelessly stored person for negligent homicide ( Section 222 StGB) stand side by side, provided that the intentional killing can be objectively attributed to the negligent person .

Indirect perpetration, Section 25 Paragraph 1 Alternative 2 StGB

(1) Anyone who commits the offense ... by someone else will be punished as a perpetrator.

Section 25, Paragraph 1, Alternative 2 of the Criminal Code regulates indirect perpetration. Here, the offender commits the offense by someone else: He does not carry out the elements of the offense himself, but uses a third party designated as the person in front. The fact that he is still treated as a perpetrator results from the fact that, unlike the person in front, he controls the events by directing the person in front in his mind. Control power usually arises from a circumstance that creates a criminal liability deficit for the person in front and exploits the perpetrator to achieve his goal.

Superior knowledge of the man behind

Indirect perpetration can result, for example, from the fact that the man behind has a knowledge advantage over the man in front. This applies, for example, when the man behind instructs the man in front to take something that is strange and hand it over to him. If the person in front mistakenly assumes that he is allowed to do so because the thing belongs to the perpetrator, he lacks intent regarding the strangeness of the object because he is subject to a factual error according to Section 16 (1) sentence 1 of the Criminal Code. As a result, he does not make himself a criminal offense for theft ( § 242 StGB). By consciously awakening this mistake and using it to commit the crime, the man behind the crime controls the act in a way that makes it seem appropriate to attribute the actions of the man in front to him as a criminal offense. He therefore commits an indirect theft. The same applies if the person in front recognizes that the object of the crime is alien, but acts with the intent of appropriateness necessary for a theft .

Indirect perpetration is also present if the perpetrator deliberately induces a judge in a court case to make a wrong decision to the detriment of the opponent. A Tatbeherrschung also comes into question when the car in front to blame incompetent or a mistake of law subject, which is inevitable, and therefore in accordance with § 17 sentence 1 SCC excludes his fault.

It is controversial in jurisprudence whether indirect perpetration is also an option if the person in front does not have a criminal liability deficit. Such a constellation formed the basis of the King of the Cat case by the Federal Court of Justice in 1988. Here two backers gave the man in front to commit a murder ( § 211 StGB). The man in front believed on the basis of the stories behind the men that he was allowed to commit the murder, since he assumed that the act would save mankind from a dangerous creature known as the Cat King. This misconception was an avoidable error of prohibition, which according to § 17 sentence 2 StGB does not affect the criminal liability of the erring person. The Federal Court of Justice affirmed the existence of indirect perpetrators, as the people behind them steered the man in front of them by creating the error. Some voices from legal theory agree with this argument, according to which it is possible that a perpetrator is behind the perpetrator. Opposing voices object that the full criminal responsibility of the person in front stands in the way of an inspection of the act by the people behind it, as it is not directed in a legally relevant manner.

After all, the man behind can be an indirect perpetrator if he arouses or reinforces an error in the person in front about the sense of an action. The Federal Court of Justice affirmed this in the Sirius case of 1983, for example . Here the man behind deceived the man in front of the fact that it killed itself by dropping a hair dryer into the bath water. The indirect perpetration of the man behind resulted from the purposeful excitement of the error in the man in front.

Superior will of the man behind

An indirect perpetrator can also result from the fact that the man behind puts pressure on the man in front so that he commits a criminal offense. This is the case, for example, in cases of compulsory coercion in accordance with Section 35 (1) sentence 1 of the Criminal Code . Here the man behind threatens the man in front with the occurrence of danger to life, limb or freedom for him or a close relative, which he can only avert by committing a crime.

Indirect perpetration continues to come into question through the exploitation of an organized power apparatus. Such was the case law, for example, in the context of shooting orders at the inner-German border. The members of the National Defense Council of the GDR were the backers of the wall riflemen because of their prominent position within the hierarchy.

In addition, there may be indirect perpetrators in cases in which the man behind induces the man in front to injure himself. The conditions under which this can be criminally accused of the man behind is controversial in jurisprudence. Sometimes it depends on whether the victim could consent to the injury. If this is not possible, for example due to a lack of will , the perpetrator is indirect. Another view uses Section 35 (1) Sentence 1 of the Criminal Code as a yardstick. According to this, there is indirect perpetration if the person in front is excused for his act.

Complicity, Section 25 Paragraph 2 StGB

(2) If several people commit the offense jointly, each is punished as a perpetrator (accomplice).

Section 25 (2) StGB standardizes complicity. Such is the case when several people work together on a crime and act according to a common crime plan. This is the case, for example, if two people jointly rob someone else( Section 249 of the Criminal Code) by one coercing them and the other taking something away. Although none of the parties involved fulfills the entire offense of robbery in person, it would not be appropriateto punishthe coercive only for coercion ( Section 240 StGB) and the taker only for theft, as the deliberate cooperation of both causes the far more serious injustice a robbery is carried out. Therefore, Section 25 (2) of the Criminal Coderesults inmutual attribution of the contributions to the crime, so that in the example case, both perpetrators make each other criminal for joint robbery. The attribution is possible as far as the accomplices have agreed on a common approach within the framework of their crime plan; no attribution is therefore made if an accomplice realizes additional offenses without the knowledge of the other. If an accomplice realizes a successful offense , for example by killing another as part of a robbery ( Section 251 of the Criminal Code), this can be attributed to the other if the other is at least negligent.

It is controversial in jurisprudence whether complicity is also conceivable in the case of negligent action on the part of those involved. This is the case, for example, when several people throw stones from a hill, with the result that one person is fatally hit by a stone. There is a practical need for mutual attribution of contributions to the crime if it cannot be proven whose stone is fatal: In this case, both are acquitted in dubio pro reo , provided that the contributions cannot be mutually attributed. The prevailing view rejects the construction of negligent complicity, since an attribution is only possible on the basis of a joint crime plan. However, those who merely act negligently do not have this.

A joint decision to act can also be taken while the perpetrator is committing the act. In jurisprudence, it is controversial up to which point in time such successive complicity (Latin : succedere : to follow) is possible. According to case law, it comes into question until the end of a crime. In legal doctrine, this assessment is predominantly rejected, since criminal control of the act is only possible as long as the legal offense has not yet been completed. According to this, complicity can only take place up to the completion of the offense.

participation

A participant limits his contribution to the act of influencing the act of another. The injustice of the participant is therefore less than that of the perpetrator. The participant may also commit an attack on someone else's legal interest, but this is only indirect, as the direct violation of legal interest originates from the perpetrator. Therefore, the penalty for the participant is typically lower than that for the perpetrator.

According to the prevailing opinion, the criminal reason for participation lies in the perpetrator causing an attack on legal interests. By encouraging or supporting the perpetrator to commit a criminal offense, the participant creates an additional threat to the legal interest that the perpetrator is attacking.

According to Section 28 (2) StGB, the StGB recognizes two forms of participation: incitement ( Section 26 StGB) and aiding and abetting ( Section 27 StGB). Both forms of participation are linked to the commission of an offense designated as the main offense by another. The criminal liability for participation is fundamentally ancillary to this. Therefore, a criminal liability for participation comes into consideration only if someone else commits a willful and unlawful main offense. If this person acts in a justified manner or if he lacks intent, there is no criminal liability for participating in this act. According to Section 29 of the Criminal Code, however, it is not necessary for the perpetrator to act at fault. For this reason, jurisprudence speaks of limited accessoriety to the main act with regard to participation.

Chain participation is possible, for example in the form of incitement to incitement. In this case the perpetrator is liable for inciting the main offense. If the perpetrator incites another to aiding and abetting another act, he is thereby aiding and abetting the main offense.

Participation in an offense that, according to its structure, requires that several people work together in opposite directions is free of punishment. Such necessary participation exists, for example, in the case of prisoners being liberated ( Section 120 of the Criminal Code): If the liberated person restricts himself to being liberated, he is not liable to prosecution for participating in the liberation of prisoners.

Incitement, § 26 StGB

An instigator is punished in the same way as a perpetrator who deliberately designates another person to commit an intentionally unlawful act.

The instigator's contribution is to induce another to commit a certain crime. This applies if he makes at least one contribution to the perpetrator's decision to commit the offense , for example by expressly asking him to do so. An incentive to commit the offense created by coherent action can also suffice for incitement. The motivation to commit an act must relate to a specific act. A general call to commit a criminal offense therefore does not constitute incitement; however, it may be punishable as a public request to commit criminal offenses ( Section 111 StGB)

Requirements for determining

The quality of the influencing contribution of the instigator is controversial in law. According to a view that is also represented by the case law, every act represents a determination that moves the perpetrator to commit the offense. This view argues that any influencing to commit a crime realizes the objective injustice of incitement. According to another opinion, the concept of determining presupposes that the perpetrator and instigator establish spiritual contact with one another and come to an understanding about the act. The high penalty for the instigator speaks in favor of such a restrictive interpretation. Only in the case of an agreement about the act is it justified to punish the instigator as a perpetrator. Even more restrictive is a view according to which a determination presupposes that the person instigated feels obliged to commit the offense to the instigator through an injustice pact.

Identify a perpetrator who is determined to act

Since the determination must awaken the will to commit the offense, it is ruled out if the perpetrator is already determined to commit the offense at the time of the determination. Jurisprudence describes such a perpetrator as omnimodo facturus. If the instigator wants to induce such a perpetrator to commit the offense, his inciting efforts do not go beyond an attempt. However, he may be criminally liable for psychological assistance.

However, there is room for determination if the instigator asks the perpetrator to qualify the offense he has planned with additional injustice criteria. This is the case, for example, when the instigator asks the perpetrator who wants to rob someone else to injure the victim with a dangerous tool. If the perpetrator follows the instigator's incentive, he commits a serious robbery instead of a simple robbery ( Section 250 (2) number 1 of the Criminal Code). The assessment of this group of cases, known as incitement, is controversial in jurisprudence: According to one opinion, there is incitement to serious robbery because the instigator significantly increases the unjust content of the act. It is therefore attributable to him as a whole. Some voices argue that this approach contradicts the treatment of the omnimodo facturus. If the perpetrator has already decided to commit the offense, this cannot be attributed to the instigator. Therefore, a criminal incitement is only possible if the additional injustice is typed in an independent offense. This procedure is called the analytical separation principle. According to this, in the example case, there would be incitement to dangerous bodily harm ( Section 224 of the Criminal Code) as well as an accessory to serious robbery.

Legal scholarship describes a form of incitement as reorganization in which the instigator induces the perpetrator to commit an act other than the one originally planned by him. This applies, for example, if he convinces him to commit theft instead of assault ( Section 223 StGB). Reorganization is also present if the instigator induces the perpetrator to commit the originally planned crime against another victim. If, on the other hand, the instigator's influence only relates to a modality of the offense that is irrelevant to the statutory offense, such as the choice of the place of the offense, there is no determination because a legally relevant circumstance is not influenced.

If the instigator moves the perpetrator to commit a lesser injustice than originally planned, there is no criminal incitement. One such case of stealing is, for example, when the instigator induces the perpetrator to commit theft instead of robbery.

Intent

Pursuant to Section 15 of the Criminal Code, the instigator must act at least with conditional intent with regard to the objective facts of the instigation.

First of all, this presupposes that the instigator realizes that he intends the instigated person to commit an intentional and unlawful crime. It is sufficient here if he knows about the essential elements of the act. His knowledge must, however, relate to a specific crime. Therefore, the case law denied the instigator's intention in a case in which the instigator had merely suggested to the instigated person to rob any bank or gas station.

Furthermore, the instigator must at least approve of the fact that his instigation will succeed so that the instigated person will commit the act. This is missing in the case of the agent provocateur . This is a person, often commissioned by investigative authorities, to induce another to commit an unlawful act so that it can be convicted in the act. This is often used in the area of organized crime . Since the agent provocateur wants the act to which he leads to fail, he lacks intent with regard to the main act.

If the offense committed by the perpetrator deviates from the imagination of the instigator, this can affect his criminal liability. If the instigated person commits another act, such as bodily harm instead of theft, the instigator lacks the intent to instigate the bodily harm, so that he acts with impunity in this regard. The incitement to theft is not complete, so that in this respect, at most, an attempted criminal liability is possible. The assessment of the effects of an insignificant error in persona of the instigated person on the instigator is controversial . This happens, for example, when the instigated shoots a person on the incorrect assumption that it is the person whom the instigator wanted to have killed. In a comparable case, the jurisprudence affirmed the instigator's intention because the instigator's error was irrelevant: he had induced the instigated person to kill a person, which happened. The confusion by the instigated person represents an insignificant error of motive. Votes against the intention to kill, since the instigator is subject to a considerable error of fact according to § 16 paragraph 1 sentence 1 StGB in the form of an aberratio ictus .

Sentencing

According to Section 26 of the Criminal Code, the instigator's sentence is judged on the basis of the main offense: The instigator is punished like a perpetrator.

Aid, § 27 StGB

(1) Anyone who willfully assisted another in his willfully committed illegal act is punished as an assistant.

(2) The punishment for the assistant is based on the threat of punishment for the perpetrator. It is to be mitigated in accordance with Section 49 (1).

Aid is provided by anyone who promotes the willful unlawful crime of another without being an accomplice. Any action that supports the perpetrator in the commission of the offense can be considered as providing assistance.

Help

Aid can be provided both by influencing the course of the crime and by influencing the offender. The former is known as physical aid. This includes, for example, the provision of a deed, the smear standing and the transport of the prey. If the assistant influences the person of the perpetrator, for example by giving advice on the commission of the crime or by reinforcing the decision to commit, he provides psychological assistance.

Causality requirement

It is controversial in jurisprudence to what extent a causal connection must exist between the assistance and the main act . According to the theory of action promotion, which is particularly represented in the case law, it is sufficient if the assistant promotes an act of others in any way. According to the success promotion theory predominantly represented in teaching, the assistance must be a contributory factor in the success of the act, since otherwise the punitive reason for participation - the assistant's attack on legal interests - would not be given. Contributory causation is present if the commission of the offense is made possible, facilitated, intensified or secured through the provision of assistance. Since these prerequisites are broad, they mostly agree with the theory of action promotion despite the additional criterion. A third view, known as the doctrine of increasing risk, suffices if the assistant's act increases the risk that the act will be successful.

Neutral aid

The question of the extent to which everyday actions can justify the allegation of aid is also controversial. This problem arises, for example, when a taxi driver drives a thief to the scene of the crime or a dealer sells a knife to a murderer. According to one opinion, in such cases there is always criminal aiding and abetting, provided that the other conditions are met; privileging professionals over private individuals through a teleological reduction of Section 27 of the Criminal Code is not required. According to the prevailing view, however, a restriction is necessary, since an unrestricted criminal liability for aiding and abetting placed an improper burden on legal transactions and responsibility for the conduct of third parties requires a special reason for attribution: Some voices restrict the term `` helpers '' based on objective criteria, such as the degree of legal disapproval and social adequacy. The jurisprudence does not follow this approach, as it is hardly more precise than the concept of helping, which is why it does not resolve the valuation problem. For this reason, based on Claus Roxin, it is based on subjective criteria: Aiding and abetting is punishable if the helper either knows that his or her contribution is promoting a criminal offense, or if this is clearly visible to him.

Time of assistance

Finally, similar to complicity, it is controversial within which crime stages aid can be provided. The case law assumes that aid can be provided up to the end of the offense, since it is possible to support the perpetrator in the commission of the offense up to this point in time. A counter-opinion in the teaching rejects this successive aid, however, since § 27 StGB refers to support in the implementation of a legal fact. This is only possible until all the constituent elements have been realized, i.e. until completion has occurred. In addition, the time of completion can usually be determined more precisely than that of termination.

Intent

The assistant must act willfully with regard to the commission of another person as well as with regard to his assistance. With regard to the main offense, it is necessary for him to comprehend its main features.

Sentencing

In the case of aiding and abetting, in accordance with Section 27 (2) sentence 2 of the Criminal Code, the sentence according to Section 49 (1) of the Criminal Code is always reduced .

Attempt to participate, §§ 30–31 StGB

If participation is unsuccessful, for example because the perpetrator refuses to commit the act or because he is already determined to do so as an omnimodo facturus, it does not go beyond the experimental stage . It is irrelevant for the success of participation, however, whether the main act is successful. In this case, the criminal liability for the participant depends on whether the attempt at the main offense is punishable. Pursuant to Section 23 (1) of the Criminal Code, this applies to all crimes and to offenses for which the law orders attempted criminality .

Attempting to participate is largely unpunished. Section 30 of the Criminal Code finally criminalizes several acts that can be committed in the run-up to a crime and that the legislature sees as particularly dangerous.

The current Section 30 of the Criminal Code is based on Section 49a of the Reich Criminal Code, which was introduced in 1876. This happened on the occasion of an incident during the Kulturkampf between the Empire and the Catholic Church : In 1873 the Belgian boiler maker Duchesne unsuccessfully offered the Archbishop of Paris Joseph Hippolyte Guibert to murder Chancellor Bismarck for a reward . When the Reich Government found out about this, they asked Belgium to create a penal norm that made such preparatory actions a criminal offense. Belgium complied with the request and introduced a regulation, the content of which the German legislature took up a little later by introducing Section 49a of the Criminal Code. In the course of the major criminal law reform , the provision became Section 30 of the Criminal Code with effect from January 1, 1975 .

Attempted incitement

Pursuant to Section 30 (1) of the Criminal Code, inciting incitement is punishable if the act to be incited is a crime . According to Section 12 (1) of the Criminal Code, the offenses are considered crimes with a minimum sentence of at least one year in prison . According to this, attempted incitement to murder and robbery are punishable, while attempted incitement to embezzlement is punishable ( § 246 StGB).

What is disputed is the classification of offenses, which are basically offenses that are classified as crimes due to the addition of special personal characteristics in the perpetrator. This is the case, for example, with receiving stolen goods ( § 259 StGB). This constitutes an offense, but if the fence is acting commercially as a member of a gang , he will implement a qualification that upgrades the act to a crime ( Section 260a of the Criminal Code). According to Section 28 (2) of the Criminal Code, special personal characteristics that are not present in the participant are not taken into account, so that in the example, from the participant's point of view, there is only simple stolen goods to which Section 30 of the Criminal Code does not apply due to the lack of crime quality. According to the case law, however, the main offender's perspective is decisive, so that the participant's lack of special personal characteristics does not preclude criminal liability under Section 30 of the Criminal Code.

Further actions prior to a criminal offense

Pursuant to Section 30 (2) of the Criminal Code, it is also punishable to declare that you are ready to commit a crime, to accept someone else's offer and to agree to commit a crime together.

punishment

The perpetrator is punished in accordance with Section 30 (1) sentence 2 StGB for attempting to commit a crime. His sentence is reduced in accordance with Section 49 (1) StGB.

resignation

In accordance with Section 31 of the Criminal Code, the perpetrator can withdraw from the attempt to participate without punishment . For this purpose, he must give up his attempt in accordance with Section 31 (1) number 1 of the Criminal Code and avert the existing risk of the completion of the act by the addressee of the attempted participation. This regulation shows parallels to Section 24 (2) sentence 1 StGB. If the act does not take place without a contribution from the withdrawing party or is committed regardless of his behavior, the exemption from punishment in accordance with Section 31 (2) StGB occurs if the perpetrator has made serious efforts to prevent the occurrence of success. This regulation corresponds to § 24 paragraph 2 sentence 2 StGB.

literature

Individual evidence

  1. ↑ Wolfgang Joecks: Before § 25 , Rn. 3. 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 .
  2. ↑ Wolfgang Joecks: Before § 25 , Rn. 2-3. 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. ↑ Wolfgang Joecks: Before § 25 , Rn. 5. 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 .
  4. ↑ BGHSt 3, 1 (5).
  5. ↑ Wolfgang Joecks: Before § 25 , Rn. 6-8. 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 .
  6. ↑ Wolfgang Joecks: Before § 25 , Rn. 9-15. 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 .
  7. ↑ Urs Kindhäuser: Criminal Law General Part . 7th edition. Nomos, Baden-Baden 2015, ISBN 978-3-8487-0605-1 , § 38, marginal no. 28.
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  10. ↑ a b Kristian Kühl: perpetration and participation . In: Juristische Arbeitsblätter 2014, p. 668 (669).
  11. ↑ RGSt 74, 84 .
  12. ↑ BGHSt 18, 87 .
  13. ↑ Kristian Kühl: Criminal Law General Part . 7th edition. Vahlen, Munich 2012, ISBN 978-3-8006-4494-0 , § 20, marginal no. 23.
  14. ↑ Claus Roxin: Criminal Law General Part . 2: Special manifestations of the crime. CH Beck, Munich 2003, ISBN 3-406-43868-7 , § 25 Rn. 13.
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  79. ↑ a b BGHSt 37, 214 .
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  103. ^ BGH, judgment of January 9, 1985, 2 StR 806/84 = Neue Juristische Wochenschrift 1985, p. 814.
  104. ^ Wolfgang Joecks, Christian Jäger: Criminal Code: Study Commentary . 12th edition. CH Beck, Munich 2018, ISBN 978-3-406-67338-2 , § 27 , Rn. 12.
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  106. ↑ Hannah Kütterer-Lang: Attempt to incite and resign - BGH, NJW 2005, 2867 . In: Juristische Schulung 2006, p. 206.
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  110. ↑ BGHSt 53, 174 .
  111. ^ BGH, judgment of January 27, 1982, 3 StR 437/81 = New Journal for Criminal Law 1982, p. 244.