Theft with weapons; Gang theft; Home burglary

from Wikipedia, the free encyclopedia

As theft with weapons; Gang theft; Theft of a home is a criminal offense in German criminal law , which is standardized in Section 244 of the German Criminal Code in Section 244 of the Special Part of the Criminal Code . He is one of the property crimes .

Section 244 of the Criminal Code qualifies the theft regulatedin Section 242 of the Criminal Code, which threatens certain types of commission of this offense with a higher penalty. These include stealing while carrying a weapon or a tool, stealing in a gang and burglary. In its current version, the norm goes back to the first and the sixth Criminal Law Reform Act from 1969 and 1998 as well as the 44th and 55th Criminal Law Amendment Acts from 2011 and 2017.

In 2017, the absolute number of registered cases of theft qualification, together with the other aggravating reasons for theft , between which the police crime statistics of the Federal Criminal Police Office do not differentiate, was over 800,000 cases. However, this number has decreased by two thirds in the last three decades: from 2,545,592 in 1993 to 853,837 in 2018. This decrease follows the trend that can be observed in all western countries. The clearance rate of less than 20% is below average compared to other groups of offenses.

Normalization

The theft qualifications are standardized in Section 244 StGB and have been as follows since it was last changed on July 22, 2017:

(1) Anyone who is punished with imprisonment from six months to ten years

1. commits a theft in which he or someone else involved
a) carries a weapon or other dangerous tool,
b) otherwise has a tool or means with him to prevent or overcome the resistance of another person through violence or threats of violence,
2. as a member of a gang that has joined forces for the continued commission of robbery or theft, steals with the assistance of another gang member or
3. Commits a theft in which he breaks into an apartment in order to carry out the act, gets in, breaks in with a wrong key or another tool that is not intended for proper opening or remains hidden in the apartment.

(2) The attempt is punishable.

(3) In less serious cases under subsection 1 numbers 1 to 3, the penalty is imprisonment for a term of between three months and five years.

(4) If the burglary of the apartment in accordance with Paragraph 1 Number 3 affects a permanently used private apartment, the penalty is imprisonment from one year to ten years.

Since the minimum sentence in paragraph 1 is less than one year in prison, the offense under Section 12 paragraph 2 of the Criminal Code is a misdemeanor . The act according to paragraph 4, on the other hand, is a crime . Protected legal interests of § 244 StGB are property and custody , as is the case with the basic offense of theft ( § 242 StGB) . In addition, the individual facts pursue additional individual protection purposes.

History of origin

Section 244 of the Criminal Code was introduced when the Criminal Code came into force on January 1, 1872. The standard initially sanctioned recidivism. Anyone who had already been convicted of theft, robbery ( Section 249 of the Criminal Code), extortion by robbery ( Section 255 of the Criminal Code) or stolen goods ( Section 259 of the Criminal Code) and then committed one of these acts again was punished. On April 1, 1970, this recidivism wasremoved from the legal normas part of the first criminal law reform act passed in 1969and replaced by differentiated qualifying facts. These included carrying firearms, carrying weapons, dangerous tools and other means to overcome a willingness to sacrifice to the contrary, and committing theft as a member of a gang. Similar provisions were previously contained in Section 243 of the Criminal Code.

On September 22, 1992, the provision was supplemented by a paragraph 3, which ordered property punishment and extended forfeiture as sanctions in the event of gang theft . On April 1, 1998, the sixth Criminal Law Reform Act supplemented the standard with the qualification of burglary. The offense of carrying firearms has been extended to the effect that carrying weapons of all kinds and dangerous tools has a qualifying effect. On November 5, 2011, the extended expiry was moved from the third to the newly created fourth paragraph. The reference to the property penalty that has now been declared null and void by the Federal Constitutional Court has been removed. In paragraph 3, the sanction regulations were replaced by the less severe case of qualification as a sentencing regulation .

On July 1, 2017, the reference to the extended forfeiture was omitted, as this was replaced by the extended confiscation of the proceeds of crime according to Section 73a of the Criminal Code. This regulation applies to all criminal offenses. On July 22, 2017, a fourth paragraph was added to Section 244 of the Criminal Code, which provides a break-in into a permanently used private apartment with an increased threat of punishment.

Objective fact

Section 244 (1) of the Criminal Code finally lists four types of commission for qualified theft. The protection purposes of the individual qualifications vary. The common prerequisite for all qualifying forms of inspection is the existence of a completed theft in accordance with Section 242 (1) StGB.

Paragraph 1 number 1

Number 1 makes it a punishable offense to carry dangerous means of crime in the event of theft. The reason for the increased threat of punishment is the increased risk to the physical integrity or the freedom of decision of the victim, which emanates from the crime. It is not necessary that there is a specific risk to a person during the inspection. The abstractly increased risk for the protected legal interests that arises from an armed perpetrator is sufficient.

Weapons and dangerous tools

Alarm weapons

An adapted devices provide weapons represent. These include items that are designed to injure a person, such as firearms , batons and thrust weapons . Sporting weapons are also relevant . The case law also classifies charged alarm pistols as weapons . Although these lack an injury function, they are comparable to the dangerousness of compressed air weapons. The latter has long been treated by case law as weapons in the sense of qualification. The mechanics of the alarm gun essentially correspond to that of a real firearm. In addition, shooting cartridges can cause serious injuries.

Dangerous tool concept

In fact, weapons are a special form of dangerous tools. This includes all movable objects that are suitable for causing serious injuries. This classification intended by the legislator coincides with the concept of dangerous tools in Section 224 of the Criminal Code, in which almost every movable object can be a tool if it is used in a dangerous manner. For example, a belt can be used to choke and a boot to kick.

In the area of ​​application of Section 244 of the Criminal Code, however, this interpretation is criticized as being too extensive in academia: unlike the bodily harm qualification in Section 224 of the Criminal Code, the standard punishes even carrying the tool and not first using it. Since the perpetrator always has objects with him that he could use to act violently, the qualification loses its meaning as a punishment for the realization of particularly serious injustices; Rather, it becomes the norm of theft. The determination of an object as a tool is made more difficult by the fact that when it is used it is usually already a serious robbery , which displaces qualified theft at competitive level . There is therefore broad agreement that the legislature failed to meet the requirements of Section 244 (1) no.1a of the Criminal Code. The way in which this interpretation should take place is controversial. There are essentially two directions: one is based on the will of the perpetrator to use the object (subjective approach), the other on the nature of the object and the factual situation (objective approach).

Dispute

The supporters of the subjective interpretation approach demand a reservation of use by the perpetrator. According to this, an object that is not a weapon only becomes a dangerous tool when the perpetrator decides to use the object against a person to cause injuries. The objection to this is that this approach is associated with considerable problems of evidence because it focuses on subjective elements. In addition, the standard overlaps with this interpretation with number 1b, the use of another tool.

It is therefore predominant to use objective criteria for classifying the crime. Various approaches have emerged among the representatives of this objective determination:

According to one opinion, the hazard potential emanating from the object is decisive for classification as a dangerous tool. This is countered by the fact that this is too vague and does not lead to any restriction of the facts, since, for example, a pocket knife carried in a shoplifting that the perpetrator only wants to use to remove security labels would qualify, even though the act was only weight a minor offense.

Others build on the thesis of the reservation of use and demand that there must be an objective reference point for this. On the other hand, it is argued that, according to the will of the legislature, the carrying of the object should justify the aggravation of the punishment; the offender's will to use it should not matter.

Another, more restrictive perspective is based on whether the possession of the item is fundamentally prohibited and requires explicit official permission. The objection to this is that this, too, would lead to a shortening of the scope of the standard that was not intended by the legislature.

Another view is based on whether the object carried is dangerous enough to be comparable to weapons. Some add to this criterion to the effect that, from the point of view of a third party, there must also be the possibility that the perpetrator uses the object in the commission of the crime. Items that are socially customary to carry with you or that only serve to carry out the theft are excluded. The objection to this approach is the low degree of certainty: The assumption that an object is as dangerous as a weapon can hardly be described in a precise and generally applicable manner.

Other tools or means

This qualification includes items that are not considered weapons or dangerous tools. This circle of suitable means of offense, which is even wider than in number 1a, is restricted by the fact that the perpetrator must want to use the object to coerce a person. Because of the large scope of number 1a, the offense of number 1b includes in particular false weapons. These are objects whose dangerousness is only simulated, such as toy weapons. However, these are not unreservedly suitable objects of crime. According to the case law of the Federal Court of Justice, objects that are obviously harmless are not part of the offense. In such cases, it is not the nature of the object that influences the act, but the deception of the perpetrator. For example, he denied qualification when the perpetrator pressed a Labello pen into the victim's back and pretended it was a weapon. So he also decided on a metal pipe that was pressed to the victim's neck like a gun. A Maggi cube issued as a bomb and a water pistol which can be recognized as such are also obviously harmless objects. The court ruled differently in the case of a perpetrator who was carrying a sports bag, claiming that it contained a bomb, as the harmlessness was not obvious here. The court considers it irrelevant for the decision on the existence of the offense that the victim is aware of the harmlessness of the crime, since the focus of the norm is on the fact that the offender wants to use the object to harass the victim. It is therefore not necessary for the victim to actually feel threatened.

Carry along

The perpetrator must carry the criminal record with him. This is the case if he has it with him in such a way that he can easily access it during the commission of the crime. This is lacking, for example, if the criminal offense remains in the getaway car parked some distance away or is in a locked rucksack on the perpetrator's back.

In some cases, it is demanded that the offense be teleologically reduced in favor of professional gun bearers, since otherwise they regularly fulfill the qualification, even if they do not plan to use the weapon. This is countered by the predominant view in jurisprudence that the danger emanating from a professional weapon carrier is no less than that of another person. It therefore corresponds to the purpose of the norm not to reduce the facts.

Paragraph 1 number 2

The increased threat of punishment for gang theft is based on the fact that a gang can operate more effectively and on a larger scale than a lone perpetrator. In a gang there is also a high probability that the perpetrators will push each other to commit crimes. In addition, the offense, like other penal norms, the condition of which is a gang, serves to combat organized crime.

A gang requires a group of at least three people. The necessary minimum number of gang members has long been controversial in jurisprudence and jurisprudence. The Reichsgericht and the Bundesgerichtshof initially let two people suffice. Taking into account the motives of the legislature, the Federal Court of Justice increased this minimum to three persons in accordance with the revision of Section 244 of the Criminal Code through the sixth Criminal Law Reform Act. Because only from such a number of people the existence of organized crime is obvious. In addition, only such a number of perpetrators typically lead to an increased risk that the qualification intends to sanction. In addition, previous case law made it difficult to distinguish between complicit theft and gang theft. It is not necessary that the gang members involved in an act make comparable contributions. According to case law, it is already sufficient if only one member makes a contribution that can be assessed as criminal. Insofar as the other gang members make contributions that are at least minor, the offense of gang theft is fulfilled.

The association must have joined forces for a not inconsiderable length of time for the future commission of still uncertain theft or robbery. This connection is known as a gang agreement. It can come about expressly or through conclusive behavior. The agreement must be kept open with regard to the design of the offenses, otherwise the risk of group dynamics in a gang will not materialize. Therefore, the agreement to commit a certain number of acts or a series of largely planned acts is not sufficient. If the conditions for gang theft are met, the first act of the gang can already qualify as a qualification.

For an act to constitute gang theft, at least two gang members must continue to be involved in this act. Participation can be of any nature. According to current jurisprudence, it is not necessary for both gang members to be present at the scene of the crime, as the increased risk posed by a gang-like organization is not affected by the number of people present at the scene of the crime.

As a perpetrator-related characteristic, gang membership represents a special personal characteristic within the meaning of Section 28, Paragraph 2 of the Criminal Code. Therefore, persons who are involved in a gang theft, but are not gang members themselves, can only commit a criminal offense for participating in a gang theft.

Paragraph 1 number 3 and paragraph 4

The previous rule example of burglary was upgraded to a qualification under the Sixth Criminal Law Reform Act of 1998 because of the significant intrusion into the privacy of the victim by the perpetrator. The standard represents a special case of Section 243, Paragraph 1, Number 1 of the Criminal Code, which generally places burglary under an increased threat of punishment.

Section 244 (1) number 3 of the Criminal Code qualifies unlawful entry into the victim's living quarters. According to the general definition, a living space is a covered part of a building that serves as accommodation for people. This also includes ancillary rooms that are in the immediate vicinity of the living room, as well as hotel rooms. On the other hand, vacant living spaces are not relevant due to the lack of privacy worth protecting. Demarcation difficulties arise in the case of buildings that serve both residential and other purposes. If the perpetrator breaks into a business space, there is a burglary of the apartment if he can penetrate the living space unhindered from there. If, on the other hand, the living space is structurally separated from the business premises in such a way that the perpetrator first has to overcome another obstacle in order to enter it, entering the business premises is not yet a fact of life.

The acts of crime correspond to those of burglary: a break-in occurs when the perpetrator uses force to get into a locked room, for example by breaking a door. When getting in the perpetrator, on the other hand, refrains from using force and instead uses an unusual route to get into the apartment using skill. This is the case, for example, when climbing through a skylight. As a further offense, the norm names penetration with a wrong key. This occurs when the perpetrator uses either a forged key or a real key that he is not authorized to use. After all, the perpetrator can get into the apartment in any way and hide there.

Paragraph 4, which came into force on July 22, 2017, removed the break-in into a permanently used private apartment from the scope of Section 244 (1) number 3 of the Criminal Code and threatened it with a further increased penalty in Section 244 (4) of the Criminal Code. Since then, section 244 (1) number 3 of the Criminal Code has only been applied to temporarily used apartments, for example hotel rooms.

Subjective fact

Pursuant to Section 15 of the Criminal Code, criminal liability for dangerous bodily harm requires that the perpetrator act with at least conditional intent with regard to the objective facts . To do this, he must recognize the circumstances of the offense and accept the realization of the facts. For example, with number 1a he must act in the knowledge that he is carrying an object that can injure a person. The subjective offense is therefore not fulfilled if the perpetrator does not think about the fact that he is carrying an object that can be injured.

In Section 244, Paragraph 1, Number 1b of the Criminal Code, the perpetrator must, in addition to the intent with regard to all objective elements of the offense, have an intention to use the offense, i.e. have the will to use the offense to force its removal.

attempt

The attempt of theft qualification is punishable. It is true that § 244 paragraph 1 of the Criminal Code only a misdemeanor is, then the offense is not that the experiment of § 23 paragraph 1 variant results 1 SCC. Section 244 (2) of the Criminal Code, however, expressly stipulates that criminal offenses may be attempted. The attempt of Section 244 (4) StGB is punishable due to the criminal nature of the provision.

Litigation and sentencing

The act is prosecuted ex officio as an official offense. The times of completion and termination depend on the basic offense. Qualified theft is complete when the removal is complete. The termination of the qualification occurs as soon as the perpetrator has secured his custody of the thing, for example by removing the prey from the crime scene. From this point in time, the statute of limitations begins , which is ten years in accordance with Section 78 Paragraph 3 Number 3 StGB. The criminal complaint requirement of Section 247 of the Criminal Code (damage to a related party) is applicable to qualified theft, but not that of Section 248a (inferiority of the object of the crime).

Section 244, Paragraph 3 of the Criminal Code defines a less serious case, which provides for a sentence of three months to five years imprisonment. This regulation is primarily intended to address the tool problem in paragraph 1 number 1. This regulation is criticized as an inadequate attempt by the legislature to correct the unsuccessful facts of number 1 on the legal side. It would be more natural to correct the systematic error of the facts by reformulating the problematic variant. Section 244 (4) of the Criminal Code referred to Section 73d of the Criminal Code auntil June 30, 2017. F., who regulated the possibility of extended forfeiture. This allowed a court to confiscate the perpetrator's objects. In contrast to simple forfeiture, the extended forfeiture was not limited to objects that stem from the offense that has been sentenced, but also extended to other illegal acts. Since July 1, 2017, the forfeiture has been replaced by the "confiscation of offenses" and the extended forfeiture by the "extended confiscation of offenses" ( Section 73a StGB). Since these provisions apply to all criminal offenses, a reference is no longer necessary. As a further sanction, Section 245 of the Criminal Codepermitsthe ordering of conduct supervision .

Law competitions

Simple and particularly serious theft are suppressed by the more specific offense of Section 244 of the Criminal Code. Ideal competition exists in the case of an attempt under Section 244 of the Criminal Code and a completed (particularly serious) theft to clarify the wrongful content of the act. The same generally applies to attempted serious robbery and completed Section 244 of the Criminal Code.

Because of the different protective purposes of the individual qualifying facts of § 244 StGB and their different content of injustice, there is a unit of offense if several offenses are realized ( § 52 StGB). However, this does not apply to numbers 1a and 1b, which are mutually exclusive. Section 244 (1) to (3) of the Criminal Code takes a back seat to serious gang theft and acts of robbery and extortion . Between § 244 paragraph 1 point 3 of the Criminal Code and the trespassing of § 123 of the Criminal Code is mostly coincidence.

Crime statistics

The Federal Criminal Police Office annually publishes statistics on all criminal offenses reported in Germany, the police crime statistics . The entire federal territory has been covered since 1993. The statistics from 1991 and 1992 included the old federal states and all of Berlin. Older statistics only cover the old federal states.

Major theft overall

Recorded cases of theft under aggravating circumstances in the years 1987–2019 as a frequency figure (per 100,000 inhabitants).

The statistics summarize the serious case of theft from § 243 StGB, numbers 1 and 2 of § 244 StGB and, since 1993, also the qualification of serious gang theft from § 244a StGB under the term of theft under aggravating circumstances. The statistics differentiate between the inspection with and without a firearm and between attempt and completion.

The number of registered offenses increased significantly after reunification. The peak was reached in 1993 with the first recording of the new federal states. In the following years the number dropped significantly. After 2010, the number of offenses recorded increases again slightly. The Ministry of the Interior and the Federal Criminal Police Office attribute this increase to the increasing number of gangs. This is a manifestation of the increasing organized crime. It is noticeable among the thieves' gangs that their members are increasingly foreigners. The proportion of foreign suspects involved in theft under aggravating circumstances doubled between 2009 and 2015. In 2015, this proportion was 43.6% and has stagnated since then.

The number of cases has been falling again since 2015. Since 1993, the incidence rate per 100,000 population has fallen by over two thirds from 3,143 to 960 in 2019. That is far more than the overall decrease in criminal offenses , which fell by 21% over the same period. The pattern of a decrease in the incidence of theft since the early 1990s can be found in all Western countries. It's part of an overall decline in crime .

Police crime statistics for theft under aggravating circumstances in the Federal Republic of Germany
recorded cases with gun
year all in all per 100,000 inhabitants tries shot threatened Clearance rate
1987 1,729,892 2,829.4 306,109 (17.7%) 0 0 16%
1988 1,612,447 2,633.1 294,513 (18.3%) 7th 0 16.5%
1989 1,518,929 2,461.2 273,439 (18%) 0 0 15.3%
1990 1,544,932 2,464.8 278,897 (18.1%) 0 0 14.5%
1991 1,673,168 2,574.1 300,319 (17.9%) 0 0 13.5%
1992 1,905,295 2,897.1 350,802 (18.4%) 0 0 12.6%
1993 2,545,592 3,143.7 429,230 (16.9%) 0 0 11.9%
1994 2,377,299 2,922.7 402,671 (16.9%) 0 0 11.9%
1995 2,317,512 2,842.2 400,584 (17.3%) 0 0 12.9%
1996 2,111,876 2,581.2 373,070 (17.7%) 0 0 13.6%
1997 1,965,052 2,396.0 343,953 (17.5%) 0 0 14.4%
1998 1,798,120 2,191.3 313,391 (17.4%) 0 0 14.8%
1999 1,652,759 2,014.7 282,098 (17.1%) 0 0 14.4%
2000 1,519,475 1,849.3 261,992 (17.2%) 0 0 14.4%
2001 1,496,352 1,819.1 250,192 (16.7%) 0 0 14.1%
2002 1,554,592 1,885.7 255,138 (16.4%) 0 0 13.5%
2003 1,488,458 1,803.4 247,338 (16.6%) 0 0 13.2%
2004 1,444,136 1,749.8 248,447 (17.2%) 0 1 13.9%
2005 1,311,518 1,589.7 224,412 (17.1%) 0 1 13.9%
2006 1,239,287 1,503.3 221,121 (17.8%) 0 0 14.3%
2007 1,247,414 1,515.4 230,852 (18.5%) 0 0 14.9%
2008 1,165,985 1,418.2 231,030 (19.8%) 0 0 15%
2009 1,108,766 1,352.1 228,384 (20.6%) 0 0 14.9%
2010 1,067,974 1,305.6 229,004 (21.4%) 0 0 15.1%
2011 1,113,279 1,361.8 236,678 (21.3%) 0 0 15%
2012 1,098,426 1,342.1 240,083 (21.9%) 0 0 14.8%
2013 1,084,198 1,346.4 244,485 (22.5%) 0 0 14.8%
2014 1,117,916 1,384.1 254,541 (22.8%) 0 0 14.7%
2015 1,134,739 1,397.5 270,329 (23.8%) 0 0 14.1%
2016 1,083,293 1,318.3 261,812 (24.2%) 0 0 14.6%
2017 936,572 1,134.9 224,131 (23.9%) 0 0 15.1%
2018 853.837 1,031.3 198,391 (23.2%) 0 0 15.4%
2019 796.891 959.89 182,224 (22.9%) 0 0 14.8%

Home burglary

Recorded cases of burglary in the years 1987–2019 as a frequency number (per 100,000 inhabitants).

Theft of homes is recorded separately in the crime statistics as a subset of theft under aggravating circumstances . His share of this is around 11%. What is remarkable is a sharp decline of 54% in the 2000s (frequency number from 280 in 1993 to 128 in 2006), followed by a pronounced peak of 206 in 2015. In 2019 the frequency number was at its lowest value at only 105, which is a 62% decrease since 1993.

Police crime statistics for burglary in the Federal Republic of Germany
recorded cases with gun
year all in all per 100,000 inhabitants tries shot threatened Clearance rate
1999 149.044 181.7 48,666 (32.7%) 0 0 18.3%
2000 140.015 170.4 47,627 (34%) 0 0 17.7%
2001 133,722 162.6 45,365 (33.9%) 0 0 18.7%
2002 130,055 157.8 44,980 (34.6%) 0 0 19.6%
2003 123.280 149.4 42,374 (34.4%) 0 0 18%
2004 124.155 150.4 44,872 (36.1%) 0 0 19.5%
2005 109,736 133.0 40,200 (36.6%) 1 0 19.6%
2006 106.107 128.7 39,255 (37%) 0 0 19.3%
2007 109,128 132.6 41,232 (37.8%) 0 0 20%
2008 108.284 131.7 41,367 (38.2%) 0 0 18.1%
2009 113,800 138.3 43,240 (38%) 0 0 16.9%
2010 121,347 148.3 46,209 (38.1%) 0 0 15.9%
2011 132,595 162.2 51,102 (38.5%) 0 0 16.2%
2012 144.117 176.1 56,311 (39.1%) 0 0 15.7%
2013 149,500 185.7 60,045 (40.2%) 0 0 15.5%
2014 152.123 188.3 62,934 (41.4%) 0 0 15.9%
2015 167.136 205.8 71,300 (42.7%) 0 0 15.2%
2016 151.265 184.1 66,960 (44.3%) 0 0 16.9%
2017 116,540 141.2 52,495 (45.0%) 0 0 17.8%
2018 97.504 117.8 44,261 (45.4%) 0 0 18.1%
2019 87,145 105.0 39,466 (45.3%) 0 0 17.4%

See also

literature

  • Thomas Fischer : Criminal Code with subsidiary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 244 .
  • Kristian Kühl, Martin Heger: Criminal Code: Comment . 29th, revised edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 .
  • Wolfgang Joecks, Christian Jäger: Criminal Code: Study Commentary . 12th edition. CH Beck, Munich 2018, ISBN 978-3-406-67338-2 , § 244 .
  • Roland Schmitz: § 244 . 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 .
  • Petra Wittig : § 244 . In: Bernd von Heintschel-Heinegg (Ed.): Criminal Code: Commentary . 2nd Edition. CH Beck, Munich 2015, ISBN 978-3-406-66118-1 .
  • Albin Eser , Nikolaus Bosch: § 244 . In: Adolf Schönke, Horst Schröder, Albin Eser (eds.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  • Joachim Vogel: § 244 . In: Heinrich Wilhelm Laufhütte, Joachim Vogel (Ed.): Leipzig Commentary on the Criminal Code . 12th edition. tape 8 : §§ 242 to 262.De Gruyter, Berlin 2010, ISBN 978-3-89949-785-4 .
  • Urs Kindhäuser : § 244 . In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .

Web links

Individual evidence

  1. ↑ a b c d e f g Police crime statistics. Federal Criminal Police Office, accessed on April 6, 2019 .
  2. ↑ a b Michael Tonry: Why Crime Rates Are Falling Throughout the Western World, 43 Crime & Just. 1 (2014). P. 5 , accessed on June 6, 2019 (English).
  3. ↑ a b Amendment of Section 244 of the Criminal Code by the fifty-fifth law amending the Criminal Code - burglary
  4. ^ Roland Schmitz: § 242 , Rn. 4–6 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. ↑ a b Urs Kindhäuser: § 244 , Rn. 1. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  6. ↑ Amendment of Section 244 of the Criminal Code by the Forty-fourth Act amending the Criminal Code - Resistance to Enforcement Officers
  7. ↑ Amendment of Section 244 of the Criminal Code by the law on the reform of the criminal asset recovery
  8. ↑ a b c BGHSt 45, 92 (93).
  9. ↑ BGHSt 52, 257 (261).
  10. ↑ Urs Kindhäuser: § 244 , Rn. 3. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  11. ↑ BGHSt 4, 125 (127).
  12. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 4, marginal no. 3.
  13. ^ BGH, judgment of November 6, 1998, 2 StR 350/98 = Neue Juristische Wochenschrift 1991, p. 135.
  14. ↑ a b BGHSt 48, 197 .
  15. ↑ Markus Rothschild: On the dangerousness of over-the-counter alarm weapons . In: New Journal for Criminal Law 2001, p. 406.
  16. ↑ Wilfried Küper: "Weapons" and "Tools" in the reformed special section of criminal law . In: Udo Ebert, Claus Roxin, Peter Rieß, Eberhard Wahle (eds.): Festschrift for Ernst-Walter Hanack on his 70th birthday on August 30, 1999 . Berlin 1999, p. 572.
  17. ↑ Roland Schmitz: § 244 , Rn. 11. 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 .
  18. ↑ BT-Drs. 13/9064 , p. 18.
  19. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 4, marginal no. 5, 9.
  20. ^ Kristian Kühl, Martin Heger: Criminal Code: Comment . 29th, revised edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 , § 244, Rn. 5.
  21. ↑ Roland Schmitz: § 244 , Rn. 12. 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 .
  22. ↑ Thomas Fischer : Penal Code with ancillary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 244 Rn. 15th
  23. ↑ Urs Kindhäuser: § 244 , Rn. 9. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  24. ↑ Thomas Fischer : Penal Code with ancillary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 244 Rn. 15th
  25. ↑ Wolfgang Mitsch: Pocket knife as a "dangerous tool ". In: Neue Juristische Wochenschrift 2008, p. 2865.
  26. ↑ Johannes Wessels, Thomas Hillenkamp: Criminal Law Special Part 2: Offenses against assets . 38th edition. CF Müller, Heidelberg 2015, ISBN 978-3-8114-4036-4 , Rn. 275-276.
  27. ↑ Volker Erb: A folded pocket knife in your pocket becomes a dangerous tool when stolen . In: Juristische Rundschau 2011, p. 207.
  28. ^ Rudolf Rengier: Criminal Law Special Part I: Property offenses . 18th edition. CH Beck, Munich 2016, ISBN 978-3-406-68816-4 , § 4, Rn. 25th
  29. ↑ Urs Kindhäuser: § 244 , Rn. 10. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  30. ↑ Joachim Vogel: § 244 , Rn. 16. In: Heinrich Wilhelm Laufhütte, Joachim Vogel (Ed.): Leipzig Commentary on the Criminal Code . 12th edition. tape 8 : §§ 242 to 262.De Gruyter, Berlin 2010, ISBN 978-3-89949-785-4 .
  31. ↑ BGH, judgment of June 21, 2012, 5 StR 286/12 = New Journal for Criminal Law 2012, p. 571.
  32. ↑ OLG Schleswig, judgment of June 16, 2003, 1 Ss 41/03 = New Journal for Criminal Law 2004, p. 214.
  33. ↑ Roland Schmitz: § 244 , Rn. 17. 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 .
  34. ↑ Thomas Fischer: Weapons, dangerous and other tools after the decision of the Grand Senate . In: New Journal for Criminal Law 2003, p. 575.
  35. ^ Bernhard Hardtung: Theft; Weapons; Guiding; Tool . In: criminal defense lawyer 2004, p. 400.
  36. ↑ Roland Schmitz: § 244 , Rn. 20. 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 .
  37. ↑ Heiko Lesch: Weapons (dangerous) tools and means in serious robbery according to the 6th StrRG . In: Juristische Arbeitsblätter 1999, p. 30 (34).
  38. ↑ Roland Schmitz: § 244 , Rn. 13. 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 .
  39. ↑ Johannes Wessels, Thomas Hillenkamp: Criminal Law Special Part 2: Offenses against assets . 38th edition. CF Müller, Heidelberg 2015, ISBN 978-3-8114-4036-4 , Rn. 273.
  40. ↑ Wolfgang Mitsch: Criminal Law, Special Part 2: Property Offenses . 3. Edition. Springer Science + Business Media, Berlin 2015, ISBN 978-3-662-44934-9 , pp. 118 .
  41. ^ Franz Streng: The "weapon replacement function" as a specific feature of the "other dangerous tool" . In: Goltdammer's Archive 2001, p. 365.
  42. ↑ Roland Schmitz: § 244 , Rn. 15. 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 .
  43. ^ Wolfgang Joecks, Christian Jäger: Criminal Code: Study Commentary . 12th edition. CH Beck, Munich 2018, ISBN 978-3-406-67338-2 , § 244, Rn. 18-19.
  44. ↑ Thomas Fischer : Penal Code with ancillary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 244 Rn. 23-24.
  45. ↑ Roland Schmitz: § 244 , Rn. 21. 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 .
  46. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 4, marginal no. 22nd
  47. ^ BGH, judgment of June 3, 1998, 3 StR 166/98 = Neue Zeitschrift für Strafrecht, Jurisprudence Report 1998, p. 294.
  48. ↑ Thomas Fischer : Penal Code with ancillary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 244 Rn. 26th
  49. ↑ BGH, judgment of June 20, 1996, 4 StR 147/96 = Neue Juristische Wochenschrift 1996, p. 2663.
  50. ^ BGH, judgment of January 18, 2007, 4 StR 394/06 = Neue Zeitschrift für Strafrecht 2007, p. 332.
  51. ↑ Johannes Wessels, Thomas Hillenkamp: Criminal Law Special Part 2: Offenses against assets . 38th edition. CF Müller, Heidelberg 2015, ISBN 978-3-8114-4036-4 , Rn. 288.
  52. ^ BGH, judgment of January 18, 2011, 3 StR 467/10 = Neue Zeitschrift für Strafrecht 2011, p. 378.
  53. ^ BGH, judgment of March 29, 1990, 4 StR 67/90 = Neue Juristische Wochenschrift 1990, p. 2570.
  54. ↑ Roland Schmitz: § 244 , Rn. 24. 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 .
  55. ↑ Michael Heghmanns: Criminal law for all semesters: special part . Springer, Berlin 2009, ISBN 978-3-540-85314-5 , pp. 321 .
  56. ↑ BGHSt 31, 105 (106-107).
  57. ↑ BayOLG, judgment of February 25, 1999, 5St RR 240/98 = Neue Zeitschrift für Strafrecht 1999, p. 461.
  58. ↑ BVerfG, decision of August 16, 1994, 2 BvR 647/93 = New Journal for Criminal Law 1995, p. 76.
  59. ↑ Albin Eser, Nikolaus Bosch: § 244 , 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 .
  60. ↑ Thomas Fischer : Penal Code with ancillary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 244 Rn. 12.
  61. ↑ Wolfgang Schild: The criminal law dogmatic concept of gang . In: Goldtdammer's Archive 1982, p. 76.
  62. ↑ Urs Kindhäuser: § 244 , Rn. 34. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (ed.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  63. ↑ Volker Erb: The reinterpretation of the concept of a gang and the need to cooperate in gang theft . In: New Journal for Criminal Law 2001, p. 562.
  64. ↑ Urs Kindhäuser: § 244 , Rn. 36. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (ed.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  65. ↑ a b BGHSt 46, 321 .
  66. ↑ RGSt 66, 236 (238).
  67. ↑ BGHSt 38, 26 (27).
  68. ↑ Roland Schmitz: § 244 , Rn. 39. 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 .
  69. ↑ BGHSt 47, 214 .
  70. ↑ Roland Schmitz: § 244 , Rn. 41. 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 .
  71. ↑ Petra Wittig: § 244 , Rn. 15a. In: Bernd von Heintschel-Heinegg (Ed.): Criminal Code: Commentary . 2nd Edition. CH Beck, Munich 2015, ISBN 978-3-406-66118-1 .
  72. ↑ BGH, judgment of June 3, 2015, 4 StR 193/15 = New Journal for Criminal Law 2015, p. 648.
  73. ↑ OLG Hamm, judgment of April 29, 1981, 4 Ss 2939/80 = Neue Juristische Wochenschrift 1981, p. 2207.
  74. ↑ Wolfgang Ruß: § 244 , Rn. 12. In: Heinrich Wilhelm Laufhütte, Joachim Vogel (Ed.): Leipzig Commentary on the Criminal Code . 12th edition. tape 8 : §§ 242 to 262.De Gruyter, Berlin 2010, ISBN 978-3-89949-785-4 .
  75. ^ Kristian Kühl, Martin Heger: Criminal Code: Comment . 29th, revised edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 , § 244, Rn. 9.
  76. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 4, marginal no. 34.
  77. ↑ BGHSt 46, 120 .
  78. ↑ Urs Kindhäuser: § 244 , Rn. 48. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (ed.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  79. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 4, marginal no. 41.
  80. ↑ Christian Fahl: Is the "burglary theft" still covered by § 243 I 2 No. 1 StGB? In: Neue Juristische Wochenschrift 2001, p. 1699.
  81. ↑ Thomas Fischer : Penal Code with ancillary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 244 Rn. 46.
  82. ↑ Thomas Fischer : Penal Code with ancillary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 244 Rn. 47a.
  83. ↑ BGH, judgment of June 21, 2001, 4 StR 94/01 = criminal defense lawyer 2001, p. 624.
  84. ↑ Urs Kindhäuser: § 244 , Rn. 58. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  85. ↑ Mario Bachmann: On the problem of the mixed-use building in §§ 244 I No. 3 and 306a I StGB . In: New Journal for Criminal Law 2009, p. 667.
  86. ↑ RGSt 4, 353 (354).
  87. ↑ BGHSt 13, 257 (258).
  88. ↑ BGHSt 10, 132 .
  89. ↑ BGHSt 52, 84 .
  90. ↑ BGHSt 14, 291 (292).
  91. ↑ Kristian Kühl: Criminal Law General Part . 7th edition. Vahlen, Munich 2012, ISBN 978-3-8006-4494-0 , § 5, Rn. 43.
  92. ↑ Urs Kindhäuser: Criminal Law Special Part II: Offenses against property rights . 9th edition. Nomos, Baden-Baden 2016, ISBN 978-3-8487-2578-6 , § 4, marginal no. 26th
  93. ↑ Urs Kindhäuser: § 244 , Rn. 21. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (ed.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  94. ↑ Roland Schmitz: § 244 , Rn. 76. 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 .
  95. ↑ BT-Drs. 17/4143 , p. 7.
  96. ↑ Thomas Fischer : Penal Code with ancillary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 244 Rn. 52a.
  97. ↑ Roland Schmitz: § 244 , Rn. 74. 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 .
  98. ↑ BGHSt 33, 50 (53).
  99. ↑ Urs Kindhäuser: § 244 , Rn. 57. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  100. ^ Kristian Kühl, Martin Heger: Criminal Code: Comment . 29th, revised edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 , § 244, Rn. 12.
  101. ↑ Thomas Fischer : Penal Code with ancillary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 244 Rn. 53.
  102. ↑ Urs Kindhäuser: § 244 , Rn. 56. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  103. ↑ Thomas Fischer : Penal Code with ancillary laws . 67th edition. CH Beck, Munich 2020, ISBN 978-3-406-73879-1 , § 244 Rn. 54.
  104. ↑ Urs Kindhäuser: § 244 , Rn. 58. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 4th edition. Nomos, Baden-Baden 2013, ISBN 978-3-8329-6661-4 .
  105. ↑ https://www.bka.de/DE/AktuelleInformationen/StatistikenLagebilder/PolizeilicheKriminalstatistik/pks_node.html
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  107. ↑ Interior minister warns of criminal gangs. In: The time . October 1, 2014, accessed July 13, 2016 .
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