Permission error
The permission status error (also permission status error ; often abbreviated as ETI or ETBI or ETUI ) is a terminus technicus of German criminal law . It describes a special form of error .
A permissive error consists in the erroneous assumption of the actual requirements of a legally recognized justification (e.g. self-defense , § 32 StGB ). The perpetrator wants to act in accordance with the law, because he acts with knowledge of the facts relevant to the offense and, in principle, also knows the illegality of the act. Subjectively, however, he has no unlawful motivation, because if the circumstances actually exist that meet a recognized justification, his action would actually be justified.
- Example: The head of the house thinks the daughter's lover, who sneaks around his house at night, is a burglar and wants to protect his property by knocking it down.
Since the perpetrator is actually wrong about an (actual) factual circumstance and not about the factual situation as such, the more appropriate term permission circumstance error is increasingly found in the literature in accordance with the formulation in Section 16 of the Criminal Code .
Demarcation
The permission error is to be distinguished from the so-called permission error as a sub-case of the prohibition error . Its legal consequence is regulated by § 17 StGB. This can either be a mitigation of the sentence or - if the error cannot be avoided - the exclusion of the sentence.
The crucial difference is that the perpetrator is mistaken about the actual circumstances in the case of the permission error, while the permission error is based on a misconception about legal evaluations. The permission error can appear as a so-called permission existence error or as a so-called permission limit error. In the case of the former, the perpetrator mistakenly assumes the existence of an actually non-existent reason for justification or permission.
- Example: The owner of the house believes that the lover who has been admitted by the minor daughter without his permission should be given a rub.
In the case of a permission limit error, the perpetrator erroneously extends the limits of an actually existing reason for justification or permission sentence.
- Example: The landlord kills the intruded thief with the mistaken idea that it is perfectly legal to kill burglars.
Another possible constellation is the double error . In this case, the perpetrator erroneously assumes a reason for justification, similar to the error in the legal status. The difference to the legal error is that the erroneously presented reason for justification would not justify the perpetrator even if it actually existed.
- Example: The landlord is sitting in the garden with his son-in-law when the landlord's daughter appears. The son-in-law then raises his hand to greet her. The host mistakenly assumes that the son-in-law wants to hit him, so reflexively pulls his pocket knife and stabs the son-in-law.
On the one hand, the landlord incorrectly assumes that he is in a position of self-defense and therefore stabs the son-in-law to death. However, this action would not be required even in the case of self-defense, which would mean that there is no justification.
Accordingly, the rules of error of prohibition must be followed here.
requirements
The main focus of the criminal law literature has always been the controversial legal consequences of the erroneous legal status. However, this should not obscure the fact that his prerequisites must first be met: the perpetrator must imagine such circumstances that - if they were actually present - would completely fill out a recognized justification. It is therefore not sufficient if the perpetrator merely imagines a justifying characteristic. Rather (at least in his mind) the prerequisites for the justification must be fully met.
Legal consequences
It has always been controversial in jurisprudence how an error in the status of a license is to be legally assessed, i.e. whether it is to be treated as an error in the prohibition which excludes guilt if it is unavoidable , or whether the error in the status of the license does not, under certain circumstances, even lead to that Behavior is justified or has already failed to meet the relevant criteria.
In practice, the issue of the permission misconduct is not very relevant. Because apart from the advocates of the strict theory of guilt , no one gets the chance to assume criminal liability for an intentional offense if the requirements of the permission error are met . In contrast to the rather minor practical significance of the permission error, however, the significance of the dispute about the classification of the permission error stands for the theoretical idea that one has of how (criminally relevant) injustice is constituted. This explains the literary attention that has been and is still being given to the permission error.
Essentially five theories have emerged that address this problem.
Intent theory
According to the intention theory, the awareness of wrongdoing , as so-called dolus malus, is a component of the intention . If it is missing, as in the case of the erroneous authorization, the offender is not acting willfully. He can therefore not be punished for a deliberate crime ( Section 16 (1) sentence 1 StGB). But it remains u. U. the possibility of punishing him for negligent commission ( Section 16 (1) sentence 2 StGB). In the example, the landlord would possibly commit negligent bodily harm but not willful bodily harm to the lover.
This approach is only occasionally represented in criminal law, as it is no longer compatible with the StGB since the introduction of Section 17 StGB. The legislature did not take a position on the problem of the legal error and left the solution to jurisprudence and science. However, he wanted to exclude the intent theory through the regulation of § 17 StGB, since he made it clear that awareness of wrongdoing counts to guilt and not to intent. In particular, in the case of a prohibition error that can be avoided due to “legal blindness”, punishment for an intentional act should be possible.
All of this only applies to criminal law (and administrative offense law). Insofar as willful behavior is a constituent element of a norm in civil law, intent theory applies here. This means that, for example, unauthorized management without an order only exists if the perpetrator was aware of violating the legal system. Only in the area of intentional immoral damage according to § 826 BGB is the civil law intent theory according to h. M. again broken: here the perpetrator does not have to be aware of the immorality of his actions. He only needs to know the actual circumstances that shape the immorality judgment.
Doctrine of the negative elements
The doctrine of the negative elements of the offense regards the lack of justification as part of the offense . If there are grounds for justification, the offense is not fulfilled. Since the intent must relate to all features of the objective fact, the perpetrator must therefore also have intent with regard to the absence of any reason for justification. It does not matter whether the prerequisites for the justification are actually met. Thus, the erroneous status of the permit leads to the direct application of section 16 (1) sentence 1 of the Criminal Code, since the perpetrator acts without intent. A punishment for negligent inspection is still possible due to Section 16 (1) sentence 2 StGB.
What speaks against this theory is that the division of injustice into "offense" and "illegality" in the Criminal Code is also laid out by the legislature, e.g. B. Section 228 of the Criminal Code, according to which the offense of bodily harm remains fulfilled even if the (justifying) conditions for consent are met; see. also Section 32 (1) of the Criminal Code, according to which an act (in terms of the realization of the facts) is justified by the required self-defense.
Strict theory of guilt
According to the strict guilt theory, the awareness of wrongdoing is an independent element of guilt . A mistake about the illegality of one's own actions can therefore only affect the accusation of guilt and does not affect intent. If the error was unavoidable, the accusation of guilt according to § 17 sentence 1 StGB does not apply . If it was avoidable, a mitigation of the sentence according to § 17 sentence 2 StGB is possible. In the example case, according to this view, it would depend on whether the landlord could have avoided confusing the lover of the daughter and the thief. The criticism of the strict theory of guilt is that § 17 StGB is an error regarding the legal assessment, whereas the permission error is an error about the actual situation, as in § 16 StGB.
Restricted guilt theory
The restricted guilt theory is divided into the following two variants:
- Wrong intent-negating restricted guilt theory
The doctrine of the exclusion of wrongful intent does not exclude wrongful intent in the case of an error about the actual prerequisites for a justification, but rather wrongful intent. Since the law does not provide a clear regulation on this, Section 16 (1) sentence 1 of the Criminal Code is applied analogously . The analogous application of Section 16 of the Criminal Code stems from the fact that the norm basically regulates the so-called factual error, i.e. the perpetrator's ignorance of an actually existing element of the offense. In both cases, the legal consequence is justified that no punishment for intentional acts may result. The result of the wrong-intention-negating restricted guilt theory does not differ from the first two theories. The analogous application is permissible because it works in favor of the offender.
- Consequences referring to intentional guilt-negating, limited guilt theory
The restricted guilt theory referring to legal consequences (only) eliminates the intentional guilt charge. When committing the act, the perpetrator knows that he has committed an act of injustice. In this respect, he is acting deliberately. However, he does not rebel against the values of the legal order and behaves in a lawful manner, since he believes in the existence of circumstances that would justify his actions. He acts with no fault of intent in analogous application of the legal consequences of Section 16, Paragraph 1, Sentence 1 of the Criminal Code, which does not mean that intent, but at least one guilty of intent, does not apply. This leads to the possibility of punishing participants, as there is an intentional unlawful predicate offense by the erring person.
Dispute and implications
The intention theory, which assigns the wrongdoing to the wrongdoing, is no longer represented, since § 17 StGB explicitly assigns the wrongdoing to the guilt. The doctrine of the negative elements of the offense, which combines both the facts and the illegality of the criminal act, is hardly represented, although a separation is assumed according to the wording of § 32 StGB. The strict theory of guilt assigns the erroneous idea about a presumed justification situation to an error about the legal situation. This does not correspond to the character of the error, which is an error about the facts. With regard to the lack of wrongful intent, the doctrine of the exclusion of wrongful intent is not only inconsistent, in that it initially affirms the intent but then denies it, but also opens up a criminal liability loophole for participants in the offense affected by the error of the permission. This loophole can only be avoided by the dogmatics of the restricted guilt theory referring to legal consequences.
The case law
The Federal Court of Justice (BGH) applies Article 16 (1) sentence 1 of the Criminal Code analogously to the present case constellation . If the error was avoidable and the law provides for criminal liability for negligent behavior, this leads to criminal liability (only) because of negligent commission. Since all the courts of instance have followed the BGH on this question, the doctrinal opinions described above are purely academic in character, but have no practical relevance.
Other errors relevant to criminal law
- Reversed factual error
- Error of excuse ( § 35 Abs. 2 StGB)
