Permission error
When permission error after German criminal law a mistake designated where the mistaken party to a justification imagines that actually does not or does not exist in the assumed form. It is related to the error of prohibition .
In legal doctrine, a distinction is made again and again between the permission existence error , which is also referred to as the permission norm error and which is intended to signal the incorrect idea of the actual existence of a justification, and the permission limit error . The latter describes the wrongdoing of the perpetrator of the scope of a justification. The differentiation ultimately does not lead to different results, since the legal consequences are the same.
Example of a misuse of permission: Civil servant B is under deadline pressure and uses an unauthorized third-party car that has not been locked. He assumes that civil servants are allowed to do this in urgent cases (even without meeting the requirements of the justifying state of emergency ), i.e. that there is a justification for the unauthorized use of a vehicle (objective fact of Section 248b StGB ).
Example of a permission limit error: K kills children F, G, and H by using firearms in the mistaken assumption that ownership of the cherries they are stealing could easily be defended with this means. A right of self-defense would exist, but its quality is not required because the limits of the law are far exceeded.
If the perpetrator is mistaken about the existence as well as the limits of a reason for justification, there is a so-called double error .
Because of this idea, the perpetrator's awareness of wrongdoing is limited. Is i. S. d. If the court is convinced of the existence of the misconception according to § 261 StPO , it will apply the legal consequence of § 17 StGB: If the permission error was avoidable (which is usually assumed), the court has the option of mitigating the penalty according to § 49 (1) StGB to. If the error was unavoidable, the act was not culpably committed.
The demarcation from the permission error can be problematic . The erring person believes himself to be justified because of an incorrect assessment of the facts and he would be justified if the incorrectly assumed facts were correct. However, the error of permission is based on the incorrect understanding of the (criminal) legal situation in Germany .
Individual evidence
- ↑ Johannes Wessels / Werner Beulke : Criminal Law General Part , 40th Edition, Rn. 458
