Success qualified attempt
An attempt qualified to succeed is an offense whose basic offense is merely attempted and which negligently causes the qualification to be successful .
punishment
According to Section 249 of the StGB, robbery is not punishable by imprisonment for less than one year. According to the successful qualification of § 251 StGB, whoever causes the death of a person through the robbery is not punishable for less than ten years for robbery resulting in death.
Example: Robber R shoots into a door to intimidate him during a robbery. The victim O, who happened to be behind the door, is killed. Because the police are approaching, R escapes without having taken the loot first.
R is only punishable because of attempted (serious) robbery, because the robbery is not completed due to the fact that the loot has not been taken away. In contrast, the requirements for qualifying for success in Section 251 of the Criminal Code are met, because R carelessly caused O's death. The robbery attempt of the R is thus an attempt qualified to succeed .
It is controversial whether it is possible to withdraw from a successful attempt. The problem with this is that the serious consequence has already occurred. Part of the legal doctrine sees the material completion of the act in the realization of the special consequence, whereby a resignation is conceptually excluded. For the most part, however, both teaching and case law consider resignation in the constellation of a successful attempt to be possible. This majority is based on the wording of ( § 24 StGB), according to which the formal completion of the act is decisive. Since the qualification for success is a qualification , it follows that this alone, without an existing completed basic offense - from which, in turn, a resignation is undisputedly possible according to all legal opinions - as a so-called zero-point, cannot form a basis for the criminal liability of an attempt. In the event of a withdrawal from the basic offense, the point of contact with the qualification for success does not apply. However, a criminal liability for a negligence offense is possible (in the example § 222 StGB).
It is also controversial whether a successful attempt is also punishable if the attempted basic offense is not punishable in itself. This is conceivable in the event of attempted exposure ( Section 221 of the Criminal Code) resulting in death, since the attempt to suspend - because it is not a crime within the meaning of Section 12 of the Criminal Code - is not punishable in the absence of a special order ( Section 23, Paragraph 1 of the Criminal Code).
Delimitations
The attempt qualified to succeed must be strictly distinguished from the attempt to qualify for success . This represents a normal attempt in which the perpetrator has already included the serious consequence in his intent ( decision to act ).
In addition, the successful attempt must be distinguished from the qualified attempt .
literature
- Kristian Kühl : Attempt of the successful offense and resignation , in: Criminal Law, General Part. Vahlen, 8th edition 2017, pp. 647–657.
- Klaus Laubenthal : The attempt of the qualified offense including the attempt in the particularly serious case in the case of rule examples. JZ 1987, pp. 1065-1070.
Web links
- Karl Heinz Gössel: About the criminal offense of the attempted successful offense ZIS 2011, pp. 386–391.
Individual evidence
- ↑ BGH, judgment of October 9, 2002 - 5 StR 42/02 Rn. 38 = BGHSt 48, 34, 37 f .; Fischer, StGB, 66th edition, § 227 Rn. 8th.
- ↑ The attempted assault resulting in death Rechtslupe.de, December 16 of 2019.
- ↑ Klaus Hoffmann-Holland : Success-qualified offenses - other without year, accessed on August 5, 2020.
