termination

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In criminal law, termination of the offense is understood to mean the stage of the offense in which the offense has ended. In most cases this means that the purpose has been achieved. The determination of the completion time point is the extent practical significance than by the limitation period begins ( § 78a of the Criminal Code ).

The (material) completion is preceded by the (formal) completion , i.e. H. the stage of the offense in which all characteristics of the offense are fulfilled.

To what extent one between perfection and completion nor complicity or aid is possible, is controversial (see successive complicity ). It is also controversial whether features that aggravate the penalties can still be implemented in this phase.

The time of termination is important in the case of offenses which are completed before the full subjective factual situation has occurred.

definition

According to general criminal law principles, a criminal offense is ended when, after all objective criteria have been met, the legal interest has been violated to the extent aimed at by the perpetrator.

According to the Federal Court of Justice, the offense is only ended “when the perpetrator completes his negatively negatively acting act, so that the wrongdoing has actually been fully implemented. [...] This means that the termination of the offense is not only linked to the further implementation of the characteristics of the offense described in the offense after its completion [...]; Rather, the termination of the offense also includes circumstances that - for example because the legislature has chosen a type of offense with an earlier completion date to ensure effective protection of legal interests - are no longer covered by the objective description of the facts, but nevertheless deepen the material injustice of the offense because they are the attack perpetuate or even intensify the protected legal interest ”.

Certain groups of offenses

The time at which this requirement is met for the first time differs depending on the type of offense. A distinction is made in detail activities related offenses , success offenses , performance-qualified offenses , and extended criminal omission and Fahrlässigkeits did, tried and continued acts committed.

Activity crimes in which a mere act constitutes the reason for punishment are deemed to be 'ended' at the point in time at which the incriminated act has been completed.

In the case of fraud , especially subsidy fraud ( Section 264 of the Criminal Code ), the act is only ended when the (last) financial advantage is obtained, i.e. when the last partial payment of the subsidy is received.

If the time of the completion of the offense is unclear and cannot be precisely determined, the earliest conceivable offense must be assumed with a view to the start of the statute of limitations according to the principle of doubt.

In the case of dangerous bodily harm , this ends with the completion of the sexual intercourse in which the virus was transmitted from the perpetrator to the victim. On the other hand, serious bodily harm is a crime that qualifies as a success . Such acts are only ended with the occurrence of the serious consequence.

All offenses with an explicit mention of the consequence of serious damage to health or death are offenses that qualify as success.

Onset of success

If a result that is part of the offense occurs later, the statute of limitations only begins at this point in time (Section 78a sentence 2 StGB).

An unlawful act is only one that constitutes the offense of a criminal law (Section 11 (1) No. 5 StGB). A factual realization includes the occurrence of the factual success. The occurrence of the factual success after the termination of the act must therefore generally be regarded as excluded.

In contrast, there have been isolated attempts to give the provision of Section 78a Sentence 2 StGB - in part - meaning.

Termination phases

A distinction is made between the termination phase without any facts and the fact-related termination phase.

Fact-related termination phase

An offense-related termination phase can occur in the case of long-term offenses ( deprivation of liberty , trespassing ), and also in the case of repeated injuries (repeated physical injuries or insults, so-called interactive offenses). Example: In the case of a deprivation of liberty, perfection occurs with imprisonment. The further letting go is represented as a factual termination phase. In this phase complicity should be possible for an additional perpetrator who approves the deprivation of liberty and now has a common decision to act .

Termination phase without any facts

The termination phase without an offense begins, for example, in the event of a theft , when the item has been taken away and is now to be removed, i.e. the loot is secured. This type of termination should also be possible in a controversial view, particularly represented in case law. According to this, the theft is "ended when the thief has secured and secured custody of the stolen objects according to the circumstances of the individual case". According to the case law, successive complicity and aiding and abetting should now also be possible here. Features that aggravate the penalties (such as carrying a weapon) should then only be implemented in this phase. In this phase of securing the booty, no objective fact of theft is actually realized.

See also

Web links

Wiktionary: termination  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ^ BGH, judgment of June 19, 2008, file number 3 StR 90/08 = BGHSt 52, 300, 303 mwN
  2. ↑ BGH, judgment of October 25, 2000, file number 2 StR 232/00 = BGHSt 46, 159 = wistra 2001, 98
  3. ↑ BGH, decision of December 10, 2019, file number 4 StR 136/19 ; Decision of May 28, 2014, file number 3 StR 206/13 = BGHSt 59, 244; Decision of April 25, 2014, file number 1 StR 13/13 = BGHSt 59, 205 Rn. 60
  4. ↑ BGH, decision of November 16, 2000, file number 4 StR 434/00 ; BGH, judgment of March 15, 2001, file number 5 StR 454/00 = BGHSt 46, 310 = NJW 2001, 2102; BGH, decision of March 8, 2006, file number 1 StR 67/06 ; BGH, decision of June 17, 2008, file number 3 StR 217/08 ; BGH, decision of April 28, 2009, file number 4 StR 95/09 ; Fischer StGB 55th edition, § 78 marginal number 6
  5. ↑ BGH, judgment of October 18, 2007, file number 3 StR 248/07 = NStZ 2009, 34
  6. ^ BGH, judgment of October 18, 2007, file number 3 StR 248/07 = NStZ 2009, 34; Jähnke in LK 11th edition, § 78 a marginal note 13; Rudolphi / Wolter in SK-StGB § 78 a marginal note 4; Fischer, StGB 55th edition, § 78 a marginal 7)
  7. ↑ Kristian Kühl : Success-qualified offenses in the case law of the Federal Court of Justice. In: 50 Years of the Federal Court of Justice. Festival from science. Volume IV: Criminal Law, Criminal Procedure Law. Munich 2000, p. 237 ff.
  8. ↑ Kohlmann, Tax Criminal Law, AO § 376 Statute of Limitation / I. Regulations of § 78a StGB margin no. 67
  9. ↑ a b c Kristian Kühl: Completion and termination of property and property offenses. JuS 2002, 729 (730), beck-online
  10. ^ Rainer Zaczyk in: Kindhäuser / Neumann / Paeffgen, Criminal Code, 5th edition 2017, § 22 Rn. 5
  11. ↑ a b BGH, February 1, 2011, file number 3 StR 432/10
  12. ↑ a b BGH, decision of October 1, 2007, file number 3 StR 384/07 = NStZ 2008, 152, beck-online
  13. ^ BGH, judgment of April 6, 1965, file number 1 StR 73/65