Suspension (criminal law)

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The suspension is the criminal offense of putting a person in a helpless position or of abandoning them in such a situation contrary to duty and thereby putting them in danger of death or serious damage to health. In Germany's criminal law , suspension is regulated in Section 221 of Section 221 of the Special Part of the Criminal Code (StGB) . The purpose of the offense is to protect the life and limb of those in need of help from danger. Exposure is one of the specific endangering offenses .

A prison sentence of three months to five years can be imposed for the suspension .

The abandonment of newborns is also referred to as child abandonment.

Normalization

Since its last amendment on April 1, 1998, Section 221 of the Criminal Code has read as follows:

(1) Who a man

1. placed in a helpless position or
2. abandons him in a helpless situation, although he has him in his care or is otherwise obliged to assist him,

and thereby exposing him to the risk of death or serious damage to his health, is punished with imprisonment from three months to five years.

(2) A prison sentence of one year to ten years is to be recognized if the perpetrator

1. commits the act against his child or a person who is entrusted to him for upbringing or for care in the way of life, or
2. serious damage to the health of the victim caused by the act.

(3) If the perpetrator causes the victim's death by the act, the penalty shall not be less than three years in prison.

(4) In less serious cases under Paragraph 2, imprisonment of between six months and five years, in less serious cases under Paragraph 3, imprisonment of one year to ten years.

Due to the standard penalty framework of imprisonment from three months to five years, the suspension under Section 221 (1) of the Criminal Code in accordance with Section 12 (2) of the Criminal Code is an offense . He shows no experimental criminality .

Paragraph 2 concerns a crime , sentence 1 concerns cases of a guarantor obligation , sentence 2 concerns qualification through the success of the crime. Paragraph 3 also stipulates an offense that is qualified for success ( homicide ). Paragraph 4 gives a regulation on the assessment of sentences for less serious cases.

History of origin

The exposure was frowned upon in Europe only by the influence of Christianity; according to Pierer, it was not previously considered wrong. In ancient legends, for example, the well-known figures Oedipus , Romulus and Remus and Cyrus are suspended - to get rid of the heir to the throne or, in the case of Oedipus, to avert a predicted calamity. The Spartans fathers were not obliged to shortcomings in children born into a crevice of the Taygetos hinabzustürzen. With the Romans, on the other hand, the father decided whether a child would become a member of the family or not: if he did not pick up the baby placed at his feet by the midwife, it would be on the Aventine Hill or on the Columna Lactaria (English column of milk, also called infant column) exposed. Passers-by could take it and thereby acquire its service as a slave. In the Middle Ages, the Catholic Church banned the abandonment of children and at the same time ensured that monasteries accepted foundlings .

In relation to adults, the exposure of pirates is a particularly well-known issue. In earlier centuries it was the punishment for mutiny . The sailor was left on a small uninhabited island with some food, drinking water and a loaded pistol. But even seafarers who were guilty of mutiny but not piracy could face the penalty of suspension. A prominent example was the member of the Magellan Expedition of 1520, Vice Admiral Juan de Cartagena . While lower-ranking officers, such as the captains of two escort ships, Luis de Mendoza and Gaspar de Quesada, met the execution, the captain of the San Antonio, de Cartagena, was abandoned along with a priest on the deserted east coast of Patagonia . Even though the two abandoned people were spared the shameful execution, their fate is still to be assessed as much more cruel, since the inevitable death extends over a much longer period of time. Normally, such an exposure was fatal, but a few pirates survived - such as Edward England , who was left behind in Mauritius and was able to cross over to Madagascar on a self-made raft. The suspension of the seaman Robert Jeffrey by the British captain Warwick Lake in 1807 was prosecuted: Lake was discharged from the Navy and paid £ 600 in compensation to Jeffrey, who had been rescued by an American ship.

Early forerunners of the suspension criminal offense criminalized the abandonment of children by their mother. The Bavarian Criminal Code of 1813 extended the scope of the suspension to all needy people. The Prussian Criminal Code of 1851 contained a similar provision. The Reich Criminal Code of 1871, which was the forerunner of the Criminal Code of the Federal Republic of Germany, contained a suspension in Section 221 of the Criminal Code. According to this, anyone who abandons a person who is helpless due to youthful age, frailty or illness, or who violates an incumbent duty of care towards such a person, made himself a criminal offense.

Section 221 of the Criminal Code waslargely revisedby the Sixth Criminal Law Reform Act of 1998. In the course of this, the list of the case groups in which a person was particularly in need of protection was replaced by an abstract description. In the jurisprudential literature, § 221 StGB has met with considerable criticism, both because of the overall conception of the suspension and because of disproportionalities in the penalties of the individual paragraphs.

Objective fact

Basic offense

Section 221 (1) of the Criminal Code contains two types of inspection of the suspension.

Put in a helpless position

According to Section 221, Paragraph 1, Number 1 of the Criminal Code, anyone who puts another person in a helpless position is a criminal offense. This type of offense can be committed by anyone.

A helpless situation is one in which the victim is unable to ward off the danger of death or damage to health. Damage to health occurs when the victim suffers from a serious, protracted illness, a serious disruption of physical functions or a significant impairment of his or her workforce. A danger exists when it depends purely on chance whether the victim suffers harm.

The perpetrator leaves his victim in a helpless position by worsening their security situation. This can be done by increasing the danger of a situation for the victim or by depriving them of the opportunity to seek help. For example, the case law affirmed that people were placed in a helpless position in a case in which a mother only looked after her children for one night and then left them alone in a locked apartment and only returned after several days. According to the prevailing view in jurisprudence, no change of location is required for this.

Let down

According to Section 221, Paragraph 1, Number 2 of the Criminal Code, anyone who does not provide a person who is in a helpless situation is liable to prosecution.

This modality of the offense presupposes that the perpetrator has a protective guarantor position . It is therefore a special offense that can only be committed by someone who has a special obligation towards the victim. However, the prevailing view is that no further closeness is required. Duties to act can result from custody relationships characterized by personal trust, such as those that regularly exist within families. Also Ingerenz may constitute an auxiliary duty. The general duty of assistance according to § 323c StGB is not sufficient . The special position represents a personal characteristic justifying a criminal offense within the meaning of Section 28 (1) StGB, which is important for assessing the criminal liability of participants .

A failure occurs when the perpetrator does not help his victim in a helpless situation, although he is obliged to do so. According to the prevailing opinion, the concept of helpless situation corresponds to that of number 1.

Hazardous context

The helpless situation must lead in a causally and objectively attributable way to the risk of death or damage to health.

Subjective fact

A criminal liability under Section 221 of the Criminal Code requires, in accordance with Section 15 of the Criminal Code, that the perpetrator acts with at least conditional intent with regard to the objective facts . To do this, he must recognize the circumstances of the offense and accept the realization of the facts.

Qualifications

Section 221, Paragraph 2 of the Criminal Code names several qualifying facts of suspension, the existence of which increases the scope of the penalty to one year to ten years imprisonment.

Section 221 (2) number 1 of the Criminal Code is fulfilled if the offense is directed against one's own child or against a person who is entrusted to the perpetrator for care. In this regard, too, the offender must act deliberately. It is a personal characteristic that aggravates the punishment, to which Section 28 (2) of the Criminal Code applies.

Section 221 (2) number 2 of the Criminal Code is fulfilled if the offender causes serious damage to his health by the act. This is a qualification for success . Thus, the offender does not have to act deliberately with regard to the occurrence of damage,but at least negligence is required according to § 18 StGB.

Section 221 (3) of the Criminal Code contains a further qualification for success that is met if the victim dies due to a risk of death created by the suspension. As a result, the penalty range increases to three to fifteen years imprisonment.

Law competitions

If further offenses are committed in connection with an act according to Section 221 of the Criminal Code, these may be in legal competition for suspension . This often occurs in connection with other offenses against life and limb.

An act according to § 221 StGB is suppressed by an intentional homicide. If the perpetrator achieves the successful qualification of § 221 Paragraph 3 StGB, this will suppress negligent homicide according to § 222 StGB; the same applies to Section 221 (2) number 2 and Section 229 of the Criminal Code. Also, the non-assistance ( § 323c SCC), which provides the performance of a mere non offered assistance under penalty is determined by the specific § 221 displaces StGB.

The commission of offenses that pursue a protection purpose other than Section 221 of the Criminal Code can, as a single offense, result in a suspension. This applies, for example, to fleeing accidents ( § 142 StGB) and endangering road traffic ( § 315c StGB).

Legal situation in other states

In Austria, suspension is punishable under Section 82 of the Criminal Code. A prison sentence of six months to five years is threatened with anyone who puts a person in a helpless situation and then leaves them in the lurch or abandons a person entrusted to their care in a helpless situation. If this results in the death of the person at risk, the sentence doubles to between one and ten years. Between 1975 and 2001 there was also Section 197, which criminalized leaving an underage and made child removal punishable in principle, including in non-dangerous situations. To anonymous births to allow, he was finally abolished.

See also

literature

  • Wolfgang Hacker, Tobias Lautner: The basic fact of suspension (§ 221 Abs. 1 StGB). In: JURA. 2006, ISSN  0170-1452 , pp. 274-280. with further evidence
  • Wilfried Küper: Structural analysis to § 221 Abs. 1 new version. In: Journal for the entire field of criminal law. 1999 (vol. 111), p. 1 ff., With further references
  • Thomas Fischer: Criminal Code with subsidiary laws . 65th edition. CH Beck, Munich 2018, ISBN 978-3-406-69609-1 , § 221 .
  • Bernhard Hardtung: § 221 . In: Günther Sander (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 4 : §§ 185–262 StGB. CH Beck, Munich 2012, ISBN 978-3-406-60290-0 .
  • Ulfrid Neumann, Frank Saliger: § 221 . In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  • August Mau : suspension . In: Paulys Realencyclopadie der classischen Antiquity Science (RE). Volume II, 2, Stuttgart 1896, Col. 2588 f.
  • Detlev Sternenberg-Lieben, Christian Fisch: The new offense of (dangerous) exposure (§ 221 StGB new version). In: JURA. 1999, ISSN  0170-1452 , p. 45 ff.
  • Stefan Kirchner: The suspension according to § 221 StGB . Grin Verlag, 2009, ISBN 978-3-640-46577-4 .
  • Georg Freund / Frauke Timm, The suspension through "letting go in a helpless situation" (§ 221 Abs. 1 Nr. 2 StGB) in the context of omission offenses. At the same time discussion of BGH v. October 19, 2011 - 1 StR 233/11, HRRS 2011 No. 1164 , HRRS issue 05/2012, 223 [1]

Web links

  • Georg Freund and Frauke Timm, The suspension through "letting go in a helpless situation" (§ 221 Abs. 1 Nr. 2 StGB) in the context of omission offenses [2]

Individual evidence

  1. ↑ Pierer's Universal-Lexikon, Volume 2. Altenburg 1857, pp. 59-60. Online here
  2. ↑ L. Höpfner: Deutsche Encyclopädia or General Real dictionary of all arts and sciences , 6th volume. Barrentrapp son and Wenner, Frankfurt a. M. 1781
  3. ^ Hickox, Rex: All you wanted to know about the 18th century Royal Navy . Lulu.com, 2007, ISBN 978-1-4116-3057-4 , p. 121.
  4. ^ Richard Woodman: The Sea Warriors: The Fighting Captains and Their Ships in the Age of Nelson . (Carroll & Graf, 2001) pp. 183-185.
  5. ↑ Ulfrid Neumann, Frank Saliger: § 221 , Rn. 1 In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  6. ↑ Ulfrid Neumann, Frank Saliger: § 221 , Rn. 2 In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  7. ↑ BGHSt 52, 153 (156).
  8. ^ BGH, judgment of April 18, 2002, 3 StR 52/02 = Neue Juristische Wochenschrift 2002, p. 2043
  9. ↑ 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 , § 5, marginal no. 9.
  10. ↑ Bernhard Hardtung: § 221 , Rn. 9. In: Günther Sander (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 4 : §§ 185–262 StGB. CH Beck, Munich 2012, ISBN 978-3-406-60290-0 .
  11. ↑ BGHSt 21, 44 .
  12. ↑ Bernhard Hardtung: § 221 , Rn. 11. In: Günther Sander (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 4 : §§ 185–262 StGB. CH Beck, Munich 2012, ISBN 978-3-406-60290-0 .
  13. ↑ Ulfrid Neumann, Frank Saliger: § 221 , Rn. 18. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  14. ↑ Ulfrid Neumann, Frank Saliger: § 221 , Rn. 24. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  15. ↑ Ulfrid Neumann, Frank Saliger: § 221 , Rn. 29. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  16. ↑ Thomas Fischer: Penal Code with ancillary laws . 65th edition. CH Beck, Munich 2018, ISBN 978-3-406-69609-1 , § 221 , Rn. 4th
  17. ↑ Ulfrid Neumann, Frank Saliger: § 221 , Rn. 21. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  18. ↑ Wolfgang Hacker, Tobias Lautner: The basic offense of suspension (§ 221 Abs. 1 StGB). In: Jura 2006, p. 274 (277).
  19. ↑ Kristian Kühl: Criminal Law General Part . 7th edition. Vahlen, Munich 2012, ISBN 978-3-8006-4494-0 , § 5, Rn. 43.
  20. ↑ Ulfrid Neumann, Frank Saliger: § 221 , Rn. 48. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  21. ↑ a b Bernhard Hardtung: § 221 , Rn. 51. In: Günther Sander (Ed.): Munich Commentary on the Criminal Code . 2nd Edition. tape 4 : §§ 185–262 StGB. CH Beck, Munich 2012, ISBN 978-3-406-60290-0 .