Compliance Clause

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The compliance clause is a term used in German criminal law . It states that the criminal liability of an offense to cease and desist depends on the fact that the failure to take a legally relevant act to avert success corresponds to the realization of the statutory offense through active action. The compliance clause results from Section 13, Paragraph 1, Clause 2 StGB .

A criminal liability by failure to act corresponds to doing if the failure to do so in a specific case (despite questions of causality and questions about personal injustice which have to be assessed differently ) comes so close to the injustice of an active realization of the facts that it fits into the injustice type of the offense. The question of "insertion" is usually simply answered in the case of offenses with a simple cause of success such as bodily harm ( Section 223 ) or damage to property ( Section 303 ) of the Criminal Code, but more difficult in the case of behavior-related offenses, because success must be brought about in a certain way. These include, for example, the characteristics of murder in the 2nd group of Section 211 of the Criminal Code (such as malice or cruelty ), the feature of deception in Section 263 of the Criminal Code and offenses that describe the specific manner of commission, such as false suspicion ( Section 164 ) of the Criminal Code and extortion ( § 253 ) StGB.

The equal treatment of actions and omissions depends on a further prerequisite from which an actual success through omission can result, the position of guarantor . Pursuant to Section 13 of the Criminal Code, the neglecting party must be legally responsible if he has an obligation to act , for example from the law (fire brigade), from an obligation to maintain safety (responsibility for a source of danger) or from negligence (previous dangerous action).

literature

  • Paul Nitze: The meaning of the compliance clause when committing by failure (§ 13 StGB) , Duncker & Humblot, Berlin 1989, ISBN 3-428-06651-0 .

Remarks

  1. ^ A b Johannes Wessels , Werner Beulke , Helmut Satzger : Criminal Law General Part , 47th Edition, CF Müller, Heidelberg 2017, § 16, Rn. 730
  2. ↑ Dreher , Tröndle : Criminal Code and ancillary laws , CH Beck, Munich 1995, § 13 Rnr. 17th
  3. ↑ Volker Krey : German criminal law. General part (since the 4th edition 2011 continued as a one-volume work by Robert Esser ), § 36, marginal no. 1129.
  4. ^ Hermann Blei : Criminal Law I. General Part , Verlag CH Beck 1996, § 87 II.
  5. ↑ Claus Roxin JuS 73, 199; Schönke / Schröder : Commentary on the Criminal Code , Section 13, Rn. 4th