consent

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In German criminal law, consent forms a pair of terms with consent . The common generic term in this area of ​​law is agreement .

consent

In contrast to the factual exclusion consent, the justifying consent does not exclude the first stage in the structure of the criminal offense, the so-called factuality , but only the second stage, the illegality (the injustice ) of the act. Consent is therefore a justification .

Several requirements must be met for justifiable consent:

  • objective requirements:
    • (Subject of consent) The consent must have been given by the person entitled to dispose . As a rule, this is the legal guardian himself. In the case of persons incapable of consent (e.g. small children), these are the (legal) representatives (e.g. parents, carers, possibly with the approval of the care court ). Consent by a representative on justifiable decisions, especially decisions on assets, is possible.
    • (Act of consent) It must be explicitly and seriously explained before the act and must still exist at the time of the act. A special form of announcement is not required.
      Compared to consent: whether and to what extent an actual declaration of the will must be available is controversial. The necessity is partially rejected and limited to a pure consent, however carried out.
      The consent is freely revocable. Subsequent approval is not sufficient.
    • (Object of consent) The legal asset must be dispositive , that is, the legal owner must be able to determine it. This is lacking (besides legal interests of the general public) in the individual legal interests of life , cf. Section 216 StGB, which criminalizes the killing of a person even if the person concerned has expressly requested it, and physical integrity , cf. Section 228 of the Criminal Code, with consent to "immoral bodily harm". The legal consequences of mixed offenses with violation of disposable and non-disposable legal interests are controversial.
      • The consent specifies the success of the violated legal interest and the like. U. also the act of infringement itself. For the consenting party, it can depend on who carries out the act of infringement or how it is carried out. (e.g. consent only for a specific doctor and a specific treatment method)
      • Consent can be given under certain conditions. If it is not fulfilled, the consent is ineffective (as long as).
  • subjective requirements for the consenting party:
    • (Subject of consent) The legal guardian must be able to give consent . Capacity to give consent is not to be confused with legal capacity , according to §§ 104 ff. BGB . It means that the legal guardian must recognize the scope of his waiver and be able to foresee its consequences. Drunk people or children, for example, lack this ability to give consent.
      In the case of adolescents, it is controversial to what extent they are entitled to consent and the right to consent, especially in the case of medical measures.
    • (Act of consent) The consent must be free from any deficits in knowledge and will .
      Example: In the case of medical interventions, this presupposes that the consenting party has been adequately informed by the doctor. If necessary, this can be done during a telephone call. If this is not the case, the consent is ineffective. (The doctor can then, under certain circumstances, invoke the objection of so-called hypothetical consent.)
      Here there is an essential difference in the requirements for consent: There, the overwhelming opinion is based on the assumption that a lack of will caused by deception is irrelevant. According to hM, a forced consent is still not possible in any case.
  • subjective justification element: after all, the "perpetrator" must act with knowledge and on the basis of consent.

Limit of consent

In criminal law, the limit of consent is regulated in Section 228 of the Criminal Code for bodily harm . As a special prerequisite for the effectiveness of the consent, the standard requires that there is no violation of morality . The bodily harm must therefore not violate the sense of decency "of all people who think cheaply and fairly". In the context of changing world views, for example, S / M practices are often not viewed as a violation and rather linked to the dangerousness of the individual behavior. If the bodily harm is life-threatening (and there is no reasonable purpose such as a life-threatening, but possibly life-saving surgery), the consent is ineffective.

Presumed consent

In the case of presumed consent, the declaration of consent cannot be obtained in good time for actual reasons.

However, if all objective circumstances are considered, the probability bordering on certainty

  • acted in the interests of the person concerned (see management without an order ) or
  • the owner of the legal interest has no interest in prohibiting the interference (principle of lack of interest),

the act is still justified, since it is now based on the presumed will of the owner of the legal asset.

The first case is a classic phenomenon in medical law.

Hypothetical consent

In the case of a hypothetical consent, as with the presumed one, there is no actual disclosure of the consent of the person affected by the intervention. The difference to presumed consent is that in the case of the hypothetical consent it could theoretically have been obtained, but for whatever reason it did not happen.

The impact of such an event is assessed differently. The jurisprudence is also based on a justification, whereas in a counter-position that is often represented, restrictions are to be made with regard to a justification or the construct of the hypothetical consent is fundamentally questioned.

agreement

A so-called precautionary agreement is given if the factual situation presupposes that the act is committed without the consent or against or without the will of the “victim”. When this is the case is determined by interpretation, but is recognized, for example, for § 123 , § 177 , § 235 , § 239 , § 240 , § 242 , § 248b , § 249 , § 252 , § 253 , § 255 StGB .

Example: In the case of theft according to § 242 StGB, the offense presupposes the breach of someone else's custody (against or without the will of the “victim”). However, if the “victim” agrees that the “thief” can take the thing away, the offense is not fulfilled.

According to the previous view, the consent differs from the consent in some points (see above):

  • The ability to discern consent is to be assessed independently for the ability to consent . It can have a purely factual character and can therefore also be formed by those unable to give consent.
  • In addition, the consent should not have to be announced. If the perpetrator does not know the actual consent given, he is then to be punished for an attempted act.

See also

literature

Web links

Wiktionary: Consent  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ cf. BGH, judgment of June 15, 2010 , Az.VI ZR 204/09, full text.
  2. ↑ Wessels / Beulke: Criminal Law AT , § 9, Rn. 362, 31st edition 2001.
  3. ↑ cf. BGH, judgment of May 13, 1969 , Az. 2 StR 616/68, full text = BGHSt 23, 1 on the question of whether it is a criminal offense to kidnap an adult “mentally ill” person.