Engaging in a brawl

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The affray provides in criminal law in Germany a criminal offense is that of the 17th portion particular part of the criminal code (CC) in § 231 is regulated. The offense is one of the crimes of bodily harm . It protects against the risk of injury, which is difficult to control for those involved, resulting from a fight or a physical attack by several.

Section 231 of the Criminal Code prohibits participation in fights or in attacks committed by several people. A criminal liability for participating in a brawl presupposes that the act leads to the death of a person or serious bodily harm.

A prison sentence of up to three years or a fine can be imposed for engaging in a brawl .

Normalization

Since its last amendment on April 1, 1998, Section 231 of the Criminal Code has read as follows:

(1) Anyone who takes part in a brawl or in one of several attacks is punished with imprisonment for up to three years or a fine if the brawl or attack results in the death of a person or serious bodily harm (§ 226) was caused.

(2) According to paragraph 1, it is not a criminal offense who was involved in the fight or attack without being accused of doing so.

Because of the standard range of penalties of up to five years' imprisonment or a fine, participating in a brawl is an offense in accordance with Section 12 (2) StGB .

Section 231 of the Criminal Code serves to protect physical integrity. Its purpose is to prevent people from participating in fights or attacks, thereby creating the risk of physical injury. In addition, the standard serves to avoid difficulties in providing evidence: Since it is difficult to assign the success of injuries to individual persons in fights, Section 231 of the Criminal Code allows punishment even if such an assignment is not possible because the facts can only be inadequately clarified. According to the prevailing view in jurisprudence, Section 231 of the Criminal Code is therefore an abstract endangering offense.

History of origin

The Criminal Code of the Duchy of Braunschweig of 1840 made participation in brawling a punishable offense in Section 153 (2) StGB. The offense was in the context of the homicides. According to this, anyone involved in a brawl that led to the death of a person made himself a criminal offense.

The Reichsstrafgesetzbuch (RStGB) of 1872 contained in Section 227 of the RStGB a more general offense that made participation in a brawl or assault by several people a punishable offense. The norm at the time was as follows:

If the death of a person or serious bodily harm (Section 224) has been caused by a brawl or by an attack made by several people, everyone who took part in the brawl or attack is subject to up to three imprisonment for this involvement Years or a fine if he was not involved through no fault of his own.

The content of the standard of the Reich Criminal Code was adopted unchanged in the Criminal Code of the Federal Republic of Germany. The criminal law of the GDR contained no comparable regulation. In 1974 the West German legislature added the option of imposing a fine as a sanction.

The last change to the facts so far was made by the Sixth Criminal Law Reform Act of 1998. This moved the then Section 227 of the Criminal Code to Section 231 of the Criminal Code as part of the reorganization of offenses against bodily harm . The exclusion of criminal liability in the event of non-accusable participation in the brawl was transferred to the newly created Section 231 (2) StGB. Otherwise the changes were only of a linguistic nature. The federal government initially planned to abolish the offense, but was unable to assert itself in the Federal Council .

Objective fact

Section 231 of the Criminal Code names two alternative courses of action: participating in a fight and participating in an attack by several people.

brawl

A brawl is a physical confrontation between at least three people associated with mutual bodily harm. According to the prevailing opinion, the required third person can also be added afterwards; however, if it moves away, the fight is over.

The attendance term in § 231 of the Criminal Code does not correspond to the prevailing opinion in the law the participation term of § 28 paragraph 2 of the Criminal Code, but goes beyond it. Participation can take place through physical participation in acts of hostility, for example by beating others. According to the prevailing opinion, participation can still take place through psychological support of those who commit violent acts, for example by verbal encouragement.

The fact that a person is justified or excused does not cease to be involved in the event. In particular, people who act in defense are also considered to be involved , as they actively influence the danger situation. However, there is no involvement if a person only exercises protective defense, as they do not increase the danger of the event due to their passivity. There is also no factual involvement if a person only intervenes to settle the dispute. Such a person lacks the required hostile will.

Attack committed by several people

One of several attacks is one of at least two people's behavior directly related to physical injury to another. For this alternative, unilateral injury on the part of the attacker is sufficient. However, it does not necessarily have to lead to assault, as is the case when participating in a brawl, behavior that is aimed at promoting bodily harm is sufficient.

The assumption of an attack by several people does not require that the attackers are participants within the meaning of Section 28 (2) StGB. There is action by more than one person if at least two people attack the same victim with the same will.

Subjective fact

Pursuant to Section 15 of the Criminal Code, criminal liability for participating in a brawl requires that the perpetrator acts with intent with regard to all elements of the offense. Any intent is sufficient. The perpetrator must therefore at least have knowledge of the objective characteristics of the offense and accept the occurrence of the offense .

Occurrence of serious consequences

Systematic classification

Participation in a brawl or attack is only punishable if the brawl leads to serious injury.

According to the prevailing view in jurisprudence, this criterion is an objective condition of criminal liability . A criminal liability does not therefore require that the perpetrator acts with intent in this regard. Negligence is also not required, as Section 231 of the Criminal Code is not a qualification for success in the sense of Section 18 of the Criminal Code. In addition, it is irrelevant whether the cause of the serious consequence is justified.

requirements

Section 231 of the Criminal Code names the death of a person and serious bodily harm within the meaning of Section 226 of the Criminal Code as possible serious consequences . The serious consequence can occur with one party or one not involved.

The serious consequence must be a direct consequence of the danger of the fight. This is judged according to the rules of objective attribution . A sufficient attribution connection exists, for example, if the serious consequence is brought about directly by a blow or by backing away from it. On the other hand, it is no longer attributable if a viewer dies of a heart attack while watching the fight.

Issue: When the episode occurred

It is controversial in jurisprudence whether a participant can also be punished if the serious consequence occurs at a point in time at which he is not yet or no longer involved in the fight.

The jurisprudence and the predominant view in legal theory affirm a criminal liability in both cases, since otherwise the difficulties of proof would arise, which § 231 StGB was intended to avoid. In order to simplify the presentation of evidence, the norm merely links the act to the creation of danger and, moreover, does not require the perpetrator to be held liable for the serious consequences of the offense.

According to a counter-opinion, punishment for participating in a brawl is only possible for those who are involved in the crime at the time of the serious consequences. This view argues with the constitutionally guaranteed principle of guilt : Another assessment led to the perpetrator being criminally liable for the creation of danger by third parties. But it is also fundamentally doubted that the legal figure of the objective condition of criminal liability is compatible with the principle of guilt in criminal law; So it is criticized that the perpetrator could be punished for injustice of others that he cannot be personally accused of. Accordingly, the offender would also have to have caused the consequence at least negligently.

Another view differentiates between participation before and after the occurrence of the severe consequence. If the consequence already occurred before the perpetrator took part in the brawl, he could not be punished under Section 231 of the Criminal Code, as he was not involved in creating the danger that established the criminal offense. If, on the other hand, he leaves the brawl before the serious result occurs, he could be punished under Section 231 of the Criminal Code, because he was involved in the creation of the risk of injury that results in the success of the injury.

Reputation of participation

According to the second paragraph, the perpetrator must be responsible for the involvement. According to the prevailing view in jurisprudence, this is merely a declaratory reference to possible grounds for justification and excuse .

The prevailing view is that a person who is involved in the act through no fault of his own is not liable to blame. A justification by consent is excluded , since the facts protect a general interest that is not at the disposal of individual participants.

Litigation and sentencing

At § 231 of the Criminal Code, it is a public offense , which is why a prosecution without complaint is possible the injured.

The limitation period begins according to § 78a of the Criminal Code, as soon as the objective condition of criminality occurs. The limitation period is five years in accordance with Section 78 (3) number 4 of the Criminal Code.

Law competitions

If further offenses are committed in connection with an act according to Section 231 of the Criminal Code, these may be in legal competition for participation in a brawl .

According to the prevailing opinion, an act according to Section 231 of the Criminal Code on bodily harm and homicide is a single offense due to their different protective purposes ( Section 52 of the Criminal Code).

Legal situation in other states

In Switzerland's criminal law , Article 133 of the Criminal Code makes participation in a brawl a criminal offense. According to this, anyone who participates in a brawl that results in the death or physical harm of a person can be punished with a prison sentence of up to three years or a fine.

In Austria , participation in a brawl is associated with a penalty of up to two years imprisonment or a fine in accordance with Section 91 of the Criminal Code . The structure of the offense essentially corresponds to the German § 231 StGB.

literature

  • Thomas Fischer: Criminal Code with subsidiary laws . 65th edition. CH Beck, Munich 2018, ISBN 978-3-406-69609-1 , § 231 .
  • Hans Hirsch: § 231 . In: Burkhard Jähnke, Heinrich Laufhütte, Walter Odersky (eds.): Leipzig Commentary on the Criminal Code. Vol. 6 Part 1: Sections 223 to 263a . 11th edition. De Gruyter, Berlin 2005, ISBN 3-89949-289-7 .
  • Olaf Hohmann: § 231 . 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 .
  • Kristian Kühl: § 231 . In: Kristian Kühl, Martin Heger: Criminal Code: Comment . 29th, revised edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 .
  • Hans-Ullrich Paeffgen, Martin Böse: § 231 . In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  • Walter Stree, Detlev Sternberg-Lieben: § 231 . In: Adolf Schönke, Horst Schröder, Albin Eser (eds.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .

Individual evidence

  1. ↑ a b c d e Hans-Ullrich Paeffgen, Martin Böse: § 231 , 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 .
  2. ↑ BGHSt 33, 100 (103).
  3. ↑ Hans-Ullrich Paeffgen, Martin Böse: § 231 , Rn. 2. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  4. ↑ Olaf Hohmann: § 231 , Rn. 2. 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 .
  5. ↑ BGHSt 15, 369 (370).
  6. ↑ Hans Hirsch: § 231 , Rn. 4. In: Burkhard Jähnke, Heinrich Laufhütte, Walter Odersky (eds.): Leipzig Commentary on the Criminal Code. Vol. 6 Part 1: Sections 223 to 263a . 11th edition. De Gruyter, Berlin 2005, ISBN 3-89949-289-7 .
  7. ↑ BGH, judgment of December 19, 2013, 4 StR 347/13 = Neue Zeitschrift für Strafrecht 2014, p. 147 (148).
  8. ^ Rudolf Rengier: Criminal Law Special Part II: Offenses against the person and the general public . 17th edition. CH Beck, Munich 2016, ISBN 978-3-406-68815-7 , § 18, Rn. 3.
  9. ↑ Thomas Fischer: Penal Code with ancillary laws . 65th edition. CH Beck, Munich 2018, ISBN 978-3-406-69609-1 , § 231 , Rn. 8th.
  10. ↑ Hans Hirsch: § 231 , Rn. 6. In: Burkhard Jähnke, Heinrich Laufhütte, Walter Odersky (eds.): Leipzig Commentary on the Criminal Code. Vol. 6 Part 1: Sections 223 to 263a . 11th edition. De Gruyter, Berlin 2005, ISBN 3-89949-289-7 .
  11. ↑ Jörg Eisele: The “involuntary” participation in a fight . In: Journal for the entire criminal law science 1998, p. 69 (73).
  12. ↑ Urs child houses : Criminal Law Special Part I . 6th edition. Nomos Verlag , Baden-Baden 2013, ISBN 978-3-8487-0290-9 , pp. 120 .
  13. ↑ Hans-Ullrich Paeffgen, Martin Böse: § 231 , Rn. 6. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  14. ↑ Hans-Ullrich Paeffgen, Martin Böse: § 231 , Rn. 8. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  15. ^ A b Rudolf Rengier: Criminal Law Special Part II: Offenses against the person and the general public . 17th edition. CH Beck, Munich 2016, ISBN 978-3-406-68815-7 , § 18, Rn. 4th
  16. ↑ 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 , § 11, marginal no. 6-7.
  17. ↑ BGHSt 2, 160 (163).
  18. ↑ BGHSt 31, 124 (126).
  19. ↑ Hans-Ullrich Paeffgen, Martin Böse: § 231 , Rn. 13. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  20. ↑ Kristian Kühl: Criminal Law General Part . 7th edition. Vahlen, Munich 2012, ISBN 978-3-8006-4494-0 , § 5, Rn. 43.
  21. ↑ Walter Stree, Detlev Sternberg-Lieben: § 231 , Rn. 6. In: Adolf Schönke, Horst Schröder, Albin Eser (eds.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  22. ↑ Kristian Kühl: § 231 , Rn. 5. In: Kristian Kühl, Martin Heger: Criminal Code: Comment . 29th, revised edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 .
  23. ↑ BGHSt 33, 100 .
  24. ↑ Jan Zopfs: The "heavy consequence" in the fight (§ 231 StGB). In: Jura 1999, p. 172.
  25. ↑ Walter Stree, Detlev Sternberg-Lieben: § 231 , Rn. 8. In: Adolf Schönke, Horst Schröder, Albin Eser (ed.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  26. ^ Rudolf Rengier: Criminal Law Special Part II: Offenses against the person and the general public . 17th edition. CH Beck, Munich 2016, ISBN 978-3-406-68815-7 , § 18, Rn. 7th
  27. ^ Rudolf Rengier: Criminal Law Special Part II: Offenses against the person and the general public . 17th edition. CH Beck, Munich 2016, ISBN 978-3-406-68815-7 , § 18, Rn. 10.
  28. ↑ BGHSt 14, 132 (134).
  29. ↑ Olaf Hohmann: § 231 , Rn. 26. 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 .
  30. ^ 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. 323.
  31. ↑ Hans Welzel: The German criminal law: A systematic representation. 11th edition. De Gruyter, Berlin 1989, ISBN 3-11-089730-X , p. 297 .
  32. ↑ 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 , § 11, marginal no. 19th
  33. ^ Wolfgang Joecks, Christian Jäger: Criminal Code: Study Commentary . 12th edition. CH Beck, Munich 2018, ISBN 978-3-406-67338-2 , § 231 , Rn. 10.
  34. ↑ Hans-Ullrich Paeffgen, Martin Böse: § 231 , Rn. 9. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  35. ↑ Walter Stree, Detlev Sternberg-Lieben: § 231 , Rn. 10. In: Adolf Schönke, Horst Schröder, Albin Eser (eds.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  36. ↑ Hans Hirsch: § 231 , Rn. 16. In: Burkhard Jähnke, Heinrich Laufhütte, Walter Odersky (eds.): Leipzig Commentary on the Criminal Code. Vol. 6 Part 1: Sections 223 to 263a . 11th edition. De Gruyter, Berlin 2005, ISBN 3-89949-289-7 .
  37. ↑ Kristian Kühl: § 231 , Rn. 14. In: Kristian Kühl, Martin Heger: Criminal Code: Comment . 29th, revised edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 .
  38. ↑ Hans Günther: On the applicability of StGB § 227 when killing an attacker by defending the attacked person . In: JuristenZeitung 1985, p. 585 (587).
  39. ↑ Walter Stree, Detlev Sternberg-Lieben: § 231 , Rn. 10. In: Adolf Schönke, Horst Schröder, Albin Eser (eds.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .