Offense ability

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Tortious liability refers to the property of a person in Germany, according to the Private Law § 828 BGB to replace one of its intentionally or negligently damage done damage are forced to. The question of liability for damages is regulated in Germany in the civil code by § 823 BGB. To be distinguished from this is the culpability within the meaning of criminal law.

Liability for reasons of equity

There is also to § 829 BGB liability on grounds of fairness (justice), after an offense incompetents but the damage in whole or in part, must, if the equity bids. The circumstances of the parties involved are decisive. The damage compensation must not deprive the injuring party of the means that he needs for adequate maintenance and to fulfill his statutory maintenance obligations. In other words: the injuring party, who is so rich that he is not significantly affected by the payment of damages, has to pay for the damage in whole or in part. Therefore, § 829 BGB is sometimes called the "millionaire paragraph".

If an incapacitated person causes damage, his (private) liability insurance does not have to pay for the damage caused either.

Inability to commit a crime of minors

A person who has not yet reached the age of seven is not capable of tort, § 828 BGB. It is therefore not responsible for any damage caused negligently or intentionally and can therefore not be held liable.

Anyone who has reached the age of seven but not the age of ten is not responsible for any negligently caused damage caused in an accident involving a motor vehicle, railroad or suspension railway . According to the spirit and purpose of Section 828 (2), however, the case law undertakes a teleological reduction. The responsibility of the child is only excluded if a dangerous situation inherent in motorized traffic occurs in the accident, which is typically overwhelming for a child of this age. In stationary traffic - for example if the child damages a parked car - the liability exclusion does not usually apply.

Anyone who has reached the age of 7 or 10, but not yet 18 years of age, is not responsible for the damage he has caused to another if he did not have the insight necessary to recognize the responsibility when committing the damaging act ( § 828 BGB).

Ability of adults to commit offenses

Both unconsciousness and mental illness (including severe mental disabilities and brain breakdown processes, such as in Korsakov's syndrome ) lead to inability to commit a crime ( Section 827 of the German Civil Code). "Light moments" ( lucida intervalla ) make an otherwise fully incapable of criminal offense. In contrast to legal capacity (see § 105 BGB), self-induced intoxication does not lead to inability to commit a crime.

Those under legal service (§ § 1896 are ff. BGB), are characterized not limited offense ability (parallel to capacity ) ( § 104 BGB).

The legal capacity is restricted by the reservation of consent through the reference to § § 108 ff. BGB, but not the criminal capacity. What matters here is the specific psychological state at the time the damage was caused.

In contrast, a legally incapacitated person who was under guardianship under previous Austrian law could not conclude a legally effective transaction until June 30, 2018 despite a lucidum intervallum .

Summary

Offense ability is the ability for an unlawful act ( tort to be blamed) ( § 823 BGB). All persons who are not incapable of tort and are not conditionally capable of tort are capable of offending:

Are incapable of offenses

Are conditionally capable of tort

  • Children and adolescents from 8 to 18 years of age (Section 828 (3) BGB)

The limited ability to act deaf and mute was abolished on August 1, 2002 .

Binding determination only by judges

In the event of a dispute, the competent judge of the local authority shall determine whether an over 7-year-old (or, in the case of traffic offenses, a 10-year-old) is ready for responsibility ( § 828 BGB) and whether responsibility due to unconsciousness or mental disorders is excluded. or to clarify the district court. This is because the question of criminal capacity, like that of legal capacity, is ultimately a legal determination, although it is based on medical or developmental psychological questions that may have to be supported by an expert opinion to be obtained from the court.

Breach of duty of supervision

However, if the legal guardians have violated their duty of supervision ( § 832 BGB), they may be held responsible. There is no responsibility if the person subject to supervision has sufficiently fulfilled his duty to supervise and the damage has nevertheless occurred. The duty of supervision can also be contractually transferred. In the case of protective facilities ( hospitals , nursing homes ), this duty of supervision is also assumed by the facility if nothing else can be expected based on the overall circumstances. An express agreement is then unnecessary (BGH NJW 1985, 677 = VersR 1984, 460).

literature

  • Stephan Loheit: The criminal capacity of minors. In particular, the relationship between insight and control . Publishing house Dr. Kovac, Hamburg 2008, ISBN 978-3-8300-3714-9 .

See also