Building hazard

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The building risk is a criminal offense under German criminal law. The building risk is regulated by law in Section 319 of the Criminal Code and is therefore one of the publicly dangerous offenses . Because of the threat of punishment - imprisonment of up to five years or a fine - the offense is a misdemeanor .

text

Section 319 of the Criminal Code reads:

(1) Anyone who violates the generally recognized rules of technology in the planning, management or execution of a building or the demolition of a building and thereby endangers the life or limb of another person is punished with imprisonment of up to five years or with a fine.

(2) Anyone who violates the generally recognized rules of technology in the exercise of a profession or trade in the planning, management or execution of a project to install technical equipment in a building or to modify built-in equipment of this type, and thereby body or soul, shall be punished Another person's life at risk.

(3) Anyone who causes the danger through negligence is punished with imprisonment for up to three years or with a fine.

(4) Anyone who acts negligently in the cases of paragraphs 1 and 2 and negligently causes the risk is punished with imprisonment for up to two years or with a fine.

Offense

Section 319 of the Criminal Code serves to protect against dangers to the life and health of people from incorrect activities in the construction industry that violate recognized rules of technology . The perpetrator of Section 319 of the Criminal Code can only be someone who plans, manages or carries out the construction or demolition of a building. It is therefore a special offense . Construction in this sense means any company in the field of construction, be it building construction , civil engineering , hydraulic engineering or road construction . Preparatory work such as excavations are included. Planning is the elaboration of the specific planning documents which should lead directly to the construction of the building. This includes above all the construction drawings . Possible perpetrators in this variant are architects , civil engineers , specialist engineers and draftsmen . A building, on the other hand, is managed by whoever actually determines the establishment, execution and sequence of the building, so that his instructions are decisive for the execution. It depends on the actual circumstances, so that laypeople who build themselves can also manage a building. However, the mere supervision of the construction does not necessarily justify the construction manager status. The construction workers in particular include the construction workers. This also includes auxiliary services such as erecting scaffolding or safety measures. However, mere deliveries are not enough.

The offense under Paragraph 1 is a specific offense at risk . So there must have been a concrete danger to life or limb; Successful injury is therefore not necessary. Since it is, as it were, an intentional offense, the perpetrator must have at least recognized the danger and accepted it approvingly. According to paragraph 2, anyone who disregards the recognized rules of technology and thus causes a danger is also punished. In this case, it is sufficient that work is carried out on an existing structure. These rules must be well known to trained practitioners. An expert may need to clarify whether this is the case. The relevant building regulations such as the building site ordinance come into consideration here . Formal inclusion in a set of rules is not required, but it is an indication of general awareness. Depending on professional experience in the construction industry, different standards of care can be applied depending on the perpetrator. In the case of a division of labor, all those involved can be considered as perpetrators, possibly also complicitly or through omission . The commissioning of subcontractors does not exempt from liability, so that a criminal liability is possible. A breach of duty to provide information can also constitute criminal liability.

Paragraphs 3 and 4 contain mitigating penalties in the event that various objective elements of the offense were not intentionally, but only negligently implemented. According to § 320 StGB there is the possibility of active repentance .

civil right

Claims for damages under civil law can arise from the right to warranty against defects or because of poor performance in the service contract . In the event of a violation, claims according to § 823 ff. BGB come into consideration.

literature

Individual evidence

  1. ↑ OLG Zweibrücken, 1 OLG 1 Ss 76/15 , accessed on November 7, 2019.
  2. ^ Thomas Fischer : Criminal Code: StGB - with subsidiary laws . 66th edition. CH Beck, Munich 2019, ISBN 978-3-406-72436-7 , § 319, Rn. 3 .
  3. ↑ Fischer, § 319, Rn. 4th
  4. ↑ BGH NJW 1965, 1340.
  5. ↑ Fischer, § 319, Rn. 6 mwN.
  6. ↑ Federal Court of Justice, ruling v. April 30 , 1975, Az .: 1 StR 554/74 , accessed on November 7, 2019.
  7. ↑ BGH 4 StR 252/08 - judgment of November 13, 2008 , accessed on November 7, 2019.
  8. ↑ Federal Court of Justice, ruling v. June 25, 1965, Az .: 4 StR 278/65 , accessed on November 7, 2019.