Error in person
In the case of the error in persona ( Latin for “error in the person”) in criminal law, the perpetrator confuses the targeted person or thing ( Latin error in objecto ) due to incorrect identification .
General
The terminus technicus comes from the theory of errors . The error in persona is dogmatically located in the case of a factual error and occurs when the criminal success intended by the perpetrator occurs on the targeted crime object , but this is actually different from the one presented, so that he must find out that he was subject to a confusion of identity. The error in persona is to be distinguished from the aberratio ictus . In the latter case, the offense fails due to external circumstances, without the perpetrator being mistaken about the identity of the object of the crime.
species
The legal consequence of the error in persona depends on the quality of the legal interest ultimately violated by the perpetrator compared to the one he actually wanted to violate.
Equivalence of the objects of crime
In the case of "equivalence" of the object of the crime, that is, if the actually targeted and the ultimately injured object of the crime belong to the same category (e.g. life, limb, property), there is only an insignificant error of motive . The perpetrator is consequently punished for the committed crime.
example
The intent of a person killed , eliminated in accordance with § 16 para. 1 sentence 1 of the Criminal Code is not because of the actual target man is confused with another, as injured in both featured as well as in the actual realized situation, the legal interest "life" becomes. The violation of the legal interest “life” already fulfills the legal requirements of manslaughter ; the specific identity of the victim, on the other hand, is not part of the legal offense. The fact that the victim was actually a different victim than the perpetrator expected is therefore only an insignificant deviation from the (presented) causal course. A factual error that leads to a deliberate exclusion does not exist.
The Rose-Rosahl case from 1859 and the “Hoferbe-case” decided by the Federal Court of Justice (BGH) in 1990 fall into this category .
Inequality of the objects of crime
The situation is different with “inequality” of legal interests. If the violated and the presented offense do not belong to the same legal property, the offender is regularly punished for attempting the presented offense and as a result of the premeditated error of fact because of negligence with regard to the actually violated offense, provided that a corresponding criminal provision exists.
- example
If A kills an alleged cardboard figure at night, but it later turns out to be a person who dies from the consequences, A is to be punished on the one hand for attempted damage to property , on the other hand for negligent homicide. A did not want to kill anyone, so he had no intentional act in mind, but must accept the negligent homicide against himself. Since there was no complete damage to property, this fact does not result in any additional crime .
See also
literature
- Dreher / Tröndle : Criminal Code and ancillary laws , CH Beck, Munich 1995, § 16 Rnr. 6; § 20 No. 21 and § 22 no. 28.
- Sven Grotendiek: Criminal liability of the perpetrator in cases of aberratio ictus and error in persona , Europäische Hochschulschriften, Münster, Hamburg [u. a.], 2000, ISBN 3-8258-4546-X .
- Johann Mayr: Error in persona vel obiecto and aberratio ictus in self-defense , Frankfurt am Main 1992, ISBN 3-631-45073-7 .
- Claus Roxin : Criminal Law. General part. (Part 1). 3. Edition. Beck Verlag, Munich 1997, ISBN 3-406-42507-0 , pp. 404-430.
Individual evidence
- ↑ a b Urs Kindhäuser : Criminal Law General Part . 6th edition. Nomos Verlag , Baden-Baden 2013, ISBN 978-3-8329-6467-2 , p. 220 .
- ↑ BGH, judgment of October 25, 1990, Az .: 4 StR 371/90 = BGHSt 37, 214
