Consent (criminal law)

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With the exclusion of the offense in criminal law, the potential victim consents to the violation of his legal interests. In the case of offenses that require action against or without the will of the legal guardian, the objective offense (and thus the criminal liability as a whole) does not apply, because the corresponding element of the offense is not fulfilled.

Example: § 123 StGB ( penetrates ), § 242 StGB (takes away )

The consent is to be distinguished from the consent , which only has a justifying effect. The common generic term of the pair of terms is agreement .

Principles

The prerequisites for consent depend on the respective facts . Guidelines:

  • The natural will of the legal guardian is sufficient; the consent only needs to be factual.
  • Only the conscious inner consent is decisive. This need not be expressed or implied.
  • The consent must come about voluntarily. In principle, it is irrelevant whether it was fraudulently obtained.
  • In individual cases, general consent may be sufficient.
Example: A general permit applies to entering public spaces, which excludes trespassing in accordance with Section 123 of the Criminal Code ( penetrates ). This is not negated even by the negative intentions of the perpetrator.
  • If the perpetrator mistakenly believes in the existence of consent, he acts according to § 16 StGB without intent. (→ factual error )
  • Conversely, if the perpetrator is not aware of the fact that he has given his consent, the consent does not include the objective facts. However, criminal liability for (unsuitable) attempt is possible .

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