Statement offense

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The statement offenses is offenses which represent the false statements in court is punishable. There are corresponding regulations in numerous legal systems.

In German criminal law, these are criminal offenses that include a breach of the duty of a party , a witness or an expert to make truthful statements or to provide impartial and conscientious reports . They are systematically assigned to the offenses against the administration of justice. The offenses are contained in the 9th section - False unofficial testimony and perjury ( § 153 to § 162 ) of the Criminal Code .

History of origin and protection purpose

The current version of the testimony offenses is based on the testimony offenses of the Reich Criminal Code, the forerunner of the Criminal Code of the Federal Republic of Germany. The norms of the Reichsgericht can be traced back to the testimony offenses of the Prussian penal code of 1851. The structure of the testimony has changed only slightly during this period.

The testimony offenses serve to protect the administration of justice from false statements.

False unofficial statement, § 153 StGB

The basic offense of testimony offenses is the false unofficial testimony ( § 153 StGB). This was last changed on November 4, 2008.

Objective fact

Witnesses and experts can be the perpetrators of a false, improper testimony . Victims of the act are bodies that are responsible for interrogation on oath. These are especially courts. Other possible victims are notaries , patent offices and parliamentary investigative committees .

The act of § 153 StGB is the violation of the procedural truthfulness obligation by making a false statement. A statement is an oral expression. Statements that are subject to questioning are subject to the obligation to be truthful . An interrogation is a questioning that is carried out by an official of a law enforcement body in an official capacity with the aim of obtaining a statement. This includes, for example, information on the facts and the person of the interviewee.

It is disputed under which conditions a statement is considered to be untrue. According to the prevailing opinion, it is decisive whether the statement objectively contradicts reality. According to a counter-opinion, the decisive factor is whether the person making the statement considers his statement to be false. This view is based on the fact that the person making the statement can only refer to his image. If the person making the statement says something objectively wrong, although he is trying to be correct, this cannot constitute a criminal wrong. A third view assumes a false statement if the statement does not correspond to what the person making the statement could have recognized if his conscience was dutifully strained. In principle, there is nothing to prevent criminal liability if the statement was made in violation of criminal procedure regulations.

Subjective fact

The perpetrator must act with intent with regard to the objective facts. This is true if the perpetrator recognizes all the characteristics of the objective characteristics and approves the realization of the facts. The perpetrator must therefore at least approve of his testimony that his testimony does not correspond to the truth and that a competent authority has taken note of it.

Litigation and sentencing

In order to take into account the particular situation in which a witness who is obliged to tell the truth but who is for understandable reasons anxious finds himself, § 157 StGB contains a determination of the sentencing , which allows the court to mitigate the punishment or to refrain from punishment if the perpetrator acted has to avert danger to himself or a relative (Section 11 (1) No. 1 StGB).

Perjury, §§ 154–155 StGB

The perjury is a qualification is false unsworn statement. Its wording was last modified on 1 January 1975..

Offense

The offense of perjury is realized by giving false testimony after being taken under oath. In contrast to Section 153 of the Criminal Code, the scope of the norm is not limited to witnesses and experts, but basically covers every person. This does not apply to the accused in criminal proceedings or to persons who, in accordance with Section 60 number 1 alternative 2 of the Code of Criminal Procedure (StPO), are unable to take an oath due to insufficient intellectual maturity, mental illness or disability. Section 60 number 1 StPO also denies minors the ability to take an oath. Nevertheless, it is controversial in jurisprudence whether these can make themselves punishable under § 154 StGB. The jurisprudence affirms this, provided that the minor can recognize that he has committed a particular wrong by ignoring an oath. The opposite view rejects this, since the general prohibition of swearing in § 60 StPO expresses that minors are generally not able to recognize the special scope of the oath.

The act is committed by a person making false statements under oath or taking an oath on false statements. The essential formalities must be observed during the swearing-in. According to § 155 StGB, the oath in the sense of § 154 StGB is equivalent to the affirmation replacing the oath or the appeal to an earlier oath or an earlier affirmation replacing the oath.

Perjury is a crime due to its minimum penalty of one year in accordance with Section 12 (1) StGB . Therefore, according to Section 23 (1) of the Criminal Code, the attempt and, according to Section 30 of the Criminal Code, certain preparatory actions are punishable.

The subjective fact of § 154 StGB presupposes that the offender acts with intent with regard to the objective fact.

Competitions

An act according to § 154 StGB supersedes an act according to § 153 StGB as a more specific regulation .

False affidavit, § 156 StGB

The regulation of § 156 StGB represents an independent offense in addition to § 153 StGB. § 156 StGB was last amended on January 1, 1975. Section 156 of the Criminal Code covers the submission of a false affidavit . Similar to perjury, this is a confirmation of a statement, but it has no comparable weight.

Temptation to make false statements, § 160 StGB

The offense of § 160 StGB is fulfilled if someone induces another to make a false statement. The temptation to make false statements is a case of a Egyptian indirect perpetrator (Section 25 (1) Alternative 2 StGB). Indirect offender is someone who commits an act by a third party in good faith, for example by influencing another to make an untrue statement, believing that it corresponds to the truth. Such involvement cannot be constructed for testimony offenses via the general regulation of Section 25 Paragraph 1 Alternative 2 StGB, as these are offenses that can only be committed personally. The legislature assessed this fact in relation to the testimony offenses as a criminal liability loophole, so that it created § 160 StGB.

Due to the genesis of § 160 StGB, some legal scholars assume that the person making the statement must be in good faith with regard to the truth of his statement. The prevailing view is that this is not necessary.

Negligent wrongdoing; negligent false insurance in lieu of oath, § 161 StGB

Section 161 StGB punishes the negligent commission of one of the acts described in Sections 154 to 156 StGB (negligently committed perjury, negligent false affirmation on oath and negligent false affirmation in lieu of oath). Impunity occurs if the offender corrects the incorrect information in good time.

State of emergency, § 157 StGB

In favor of witnesses and experts, the court can mitigate the punishment or waive the punishment altogether if the perpetrator has told the untruth in order to avert the danger of criminal prosecution from himself or a relative or if a person who is not yet an oath has given false statements without oath. Section 157 of the Criminal Code can be used as a personal reason to mitigate the sentence in the context of the sentencing, unless the behavior of the offender is already relevant as a reason for excuse or justification according to Section 34 , Section 35 of the Criminal Code.

Correction of false information, § 158 StGB

Punishment is mitigated or the punishment is waived if the offender corrects the incorrect information in good time ( Section 158 (1) StGB). In mitigating the sentence, the court can, at its discretion, go down to the legal minimum of the threatened sentence or impose a fine instead of imprisonment ( Section 49 (2) StGB). This applies in the case of willful perjury, false affirmation in lieu of oath or false undecided testimony as well as in the case of negligent false declaration and negligent false affirmation in lieu of oath ( Section 161 (2) sentence 2 StGB).

While a resignation according to § 24 StGB is possible up to the completion of the act according to the general principles about the withdrawal from the attempt , § 158 StGB allows the perpetrator to resign in the interest of establishing the truth after the act is completed . Section 158 of the Criminal Code is thus a special case of active repentance .

literature

  • Thomas Fischer: Criminal Code with subsidiary laws . 65th edition. CH Beck, Munich 2018, ISBN 978-3-406-69609-1 , §§ 153-162 .
  • Thomas Vornbaum: §§ 153–162 . In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .

Individual evidence

  1. ↑ Thomas Vornbaum: Before §§ 153 ff , Rn. 30. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  2. ↑ Thomas Vornbaum: Before §§ 153 ff , Rn. 1. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  3. ↑ Urs Kindhäuser: Criminal Law Special Part I: Offenses against personal rights, the state and society . 6th edition. Nomos, Baden-Baden 2014, ISBN 978-3-8487-0290-9 , § 46, marginal no. 7th
  4. ↑ BGHSt 42, 139 (149).
  5. ↑ BGHSt 7, 147 (148-149).
  6. ↑ Thomas Fischer: Penal Code with ancillary laws . 65th edition. CH Beck, Munich 2018, ISBN 978-3-406-69609-1 , § 153, Rn. 4th
  7. ^ Manfred Heinrich, Uwe Hellmann, Volker Krey: Criminal law special part: Volume 1: special part without property offenses . 16th edition. Kohlhammer, Stuttgart 2015, ISBN 978-3-17-029884-2 , Rn. 552.
  8. ↑ OLG Bremen, judgment of February 17, 1960, Ss 4/60. In: Neue Juristische Wochenschrift 1960, p. 1827.
  9. ^ RGSt 61, 159 .
  10. ↑ Günther Wilms: Before §§ 153ff , Rn. 8-9. In: Leipzig Commentary on the Criminal Code. Vol. 4: §§ 80 to 184c. 10th edition. De Gruyter, Berlin 1988, ISBN 3-11-011918-8 .
  11. ↑ Harro Otto: The testimony offenses, §§ 153-163 StGB . In: Juristische Schulung 1984, p. 161.
  12. ↑ Kristian Kühl: Criminal Law General Part . 7th edition. Vahlen, Munich 2012, ISBN 978-3-8006-4494-0 , § 5, Rn. 43.
  13. ↑ Urs Kindhäuser: Criminal Law Special Part I: Offenses against personal rights, the state and society . 6th edition. Nomos, Baden-Baden 2014, ISBN 978-3-8487-0290-9 , § 47, marginal no. 2.
  14. ↑ BGHSt 10, 142 (144).
  15. ↑ Urs Kindhäuser: Criminal Law Special Part I: Offenses against personal rights, the state and society . 6th edition. Nomos, Baden-Baden 2014, ISBN 978-3-8487-0290-9 , § 47, marginal no. 16.
  16. ↑ Hans Kudlich, Arne Henn: Offender and participation in the testimony offenses . In: Juristische Arbeitsblätter 2008, p. 510 (513).
  17. ↑ Dirk Streifler: Section 157 of the German Criminal Code: Statement of shortages online comment, accessed on July 22, 2019
  18. ↑ Dirk Streifler: Section 158 of the Criminal Code: Correction of an incorrect information online comment, accessed on July 22, 2019
  19. ↑ Bernd Heinrich : Testimony, §§ 153 ff. StGB University of Tübingen, as of October 1, 2018