Stage of offense

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The offense stage is in the criminal justice of the state , of the degree of completion of an offense indicates.

General

The stage of the offense answers the legal question of whether a crime has been committed at all and how high the sentence is for a proven crime. The offense plays an important role here, because the stage of the offense also depends on whether and to what extent the legally precisely described objective criteria have been fulfilled by the offender . Both the resignation and the active repentance as punishment mitigating measures depend on the progress of the offense .

Phases of a crime

There are five phases of a criminal offense, namely decision to commit, preparation for a crime, attempt, completion and termination. Sometimes the decision to act and preparation for the act are assigned to the experimental stage. These phases should be explained using the example of burglary ( Section 244 (1) No. 3 StGB ). Objective elements of the offense are breaking into (or hiding in) an apartment for the purpose of theft .

Decision to act

Any deliberate criminal offense presupposes the perpetrator's decision to commit a criminal offense. The decision is based on an idea of ​​the perpetrator equipped with criminal energy, which is implemented in the crime plan. This decision is criminally irrelevant as long as the perpetrator remains silent about his decision and no one initiates. If someone becomes aware of an impending crime, he is obliged to report certain offenses in accordance with Section 138 of the Criminal Code . The personal exemption from this is regulated in § 139 StGB. The perpetrator's decision to act must be unconditional, therefore unconditional and final.

Example of a decision to act

The perpetrator decides to commit a burglary and remains silent about his plans.

Preparation for the crime

Also preparatory acts remain generally unpunished . These are behaviors that are intended to create the conditions for the subsequent act. This includes planning the scene of the crime , the time and course of the crime , which should take place without witnesses or leaving any traces , as well as the procurement of the means of the crime .

Preparatory actions for serious crimes even constitute independent criminal offenses ( § 83 StGB: high treason , § 87 StGB: agent activity , § 149 StGB: counterfeiting , § 152a StGB: forgery of payment cards / checks / bills of exchange , § 234a Para. 3 StGB: procrastination , § 316c para. 4 StGB: attacks on air and sea traffic ). These are typified, formal preparatory actions because the law formulates: "He who prepares (an act) by ...". Typically material preparatory actions are, for example, producing, leasing, selling or supporting. Kurt Schmoller assumes that the worthlessness of an act increases the more carefully the perpetrator has prepared it.

Example of preparation for the crime

The perpetrator is scouting out an apartment, the break-in is to take place next Saturday. He procures means of crime.

attempt

Pursuant to Section 22 of the Criminal Code, an attempt is made if the perpetrator immediately starts to realize the offense after preparing for the offense, i.e. no further preparatory actions are required until the offense is realized . The trial stage accordingly extends to actions which should lead directly to the fulfillment of the offense in the undisturbed progress or which are directly related to it in terms of space and time. Attempting to commit a crime is always punishable, an offense only if this is expressly provided for by law ( Section 23 (1) StGB). The criminal reason for the attempt is the act of the perpetrator with which he implements his criminal will. In this context, the subjective theory or the impression theory play a role in criminal law . While the subjective theory presupposes the hostile will of the perpetrator, the impression theory sees the general public's trust in the validity of the legal system shaken and the feeling of legal certainty and legal peace impaired. By withdrawing from the experiment, the experimental perpetrator can exempt himself from his experimental criminality in accordance with Section 24 (1) of the Criminal Code.

Example of an attempt

The perpetrator forcibly enters the apartment and searches it for valuables.

completion

A criminal offense is deemed to have been completed when all the features of the offense have been fulfilled. The “undertaking” of a certain offense (such as corporate offenses under Section 81 (1) StGB, Section 307 (1) StGB or Section 316c (1) No. 2 StGB) includes both attempt and completion. A material experimental act is sufficient for the formal completion of a crime. At the time of completion, a distinction is made between successful offenses (e.g. the occurrence of the injury result: Section 212 (1) StGB, Section 223 (1) StGB), endangering offenses ( Section 315b (1) StGB, Section 315c (1) StGB) and activity offenses (performance of a Act, § 316 Abs. 1 StGB).

Active repentance is possible for some already completed crimes ( § 83a StGB: high treason , § 98 Abs. 2 StGB: treason , § 139 Abs. 4 StGB, § 142 Abs. 4 StGB: Unauthorized removal from the scene of the accident , § 306 StGB, § 306a StGB: arson , § 306e Abs. 2 StGB: negligent arson, § 314a Abs. 3 StGB: those who voluntarily avert the danger before significant damage occurs).

Example of completion

The perpetrator collects the selected valuables ( removal ) and puts them in a bag he has brought with him (for the purpose of custody ).

termination

A criminal offense is only deemed to have ended when those circumstances have also been realized "which, according to the respective type of offense due to the bringing forward of completion, no longer belong to the description of the offense, but help shape the injustice of the act". The act ends at the latest when the stolen booty is brought into the perpetrator's own rooms. Termination occurs when the criminal injustice has come to an end.

  • Long-term offenses are completed with the realization of the elements of the offense, only ended with the conclusion of the impairment of legal interests. The trespassing , for example, with the penetration into the apartment completed , but only after leaving the apartment ended .
  • State offense: A uniform offense will continue over the completion period. The four-hitting the victim offender has the injury after the first strike completed , but only after the fourth beat stops .

The termination often coincides with completion, for example, according to Section 212 of the Criminal Code ( manslaughter ), both completion and termination of the act occur with the death of the person.

Example at termination

The perpetrator leaves the apartment with the full sack and escapes unnoticed with the loot. In the example, the offense has been successful even if the perpetrator loses the prey out of nervousness on the way.

Legal consequences

A criminal offense comprises not only the individual actions of the accused mentioned in the indictment and the opening order , but the entire factual process, which, according to the view of life, forms a unit, in which the accused, as the perpetrator or participant , is said to have committed a criminal offense. The law enforcement authorities must be able to provide as complete evidence as possible of the entire stage of the offense. The criminal liability only begins with the attempt to commit a crime, which - only possible until completion - leads to impunity. The highest sentence is associated with the termination of the crime. If the threat of punishment is changed during the commission of the offense, the law that applies when the offense is ended ( Latin Lex mitior ) is to be applied in accordance with Section 2 (2) StGB .

International

The forensics uses the knowledge of physics , engineering , chemistry or biology so that international conditions are the same for the offense Stadium.

Web links

Individual evidence

  1. ^ Elmar Erhardt, criminal law for police officers , 2008, p. 105
  2. ↑ Harro Otto, Basic Course in Criminal Law - General Criminal Law , 2004, p. 249
  3. ↑ BGHSt 12, 306 , 310 f.
  4. ↑ Harro Otto, Basic Course in Criminal Law - General Criminal Law , 2004, p. 249
  5. ↑ Arndt Sinn / Walter Gropp / Ferenc Nagy (eds.), Limits to Forward Relocation in a Tatstrafrecht , 2011, p. 281 ff.
  6. ↑ Kurt Schmoller, Considerations on the redefinition of the murder feature "insidious" , in: ZStW 99, 1987, p. 412 ff.
  7. ↑ BGHSt 22, 80 , 82
  8. ↑ Harro Otto, Basic Course in Criminal Law - General Criminal Law , 2004, p. 249
  9. ↑ Harro Otto, Basic Course in Criminal Law - General Criminal Law , 2004, p. 249
  10. ↑ Karl Lackner / Kristian Kühl, Criminal Code: StGB, Commentary , 2003, note before Section 22, marginal no. 2
  11. ↑ BGH StV 81, 127
  12. ↑ BGHSt 3, 40 , 43 f.
  13. ↑ BVerfGE 45, 434 , 435