The Eventualvorsatz ( Latin dolus eventualis ), who is also contingent intent (rare Eventualdolus ) is called, is a form of criminal offense intent . It is always to be distinguished from the intention (dolus directus 1st degree) and the direct intent (dolus directus 2nd degree) at the intent level.
In the case of contingent intent, the offender seriously considers the realization of an offense to be possible, but accepts this risk. The dolus eventualis at the level of intent must therefore be differentiated from direct intent, in which the perpetrator knows that his own actions will lead to the realization of the offense, and its increase, the intention, in which the realization of the offense is actually the goal of the offender's action is.
Delimitation of negligence
Insofar as the intent is characterized by the "will" of the perpetrator to realize the facts of the case with knowledge of all objective elements of the facts including the causal relationships and the perpetrator still has in mind the acceptance of the violation of the legal interest in the eventual intention , it must also be differentiated from the form of fault of negligence , which is sometimes difficult can be. In the case of homicides, case law uses the so-called inhibition threshold theory .
Differentiation from conscious negligence
In the case of deliberate negligence , the perpetrator knows the danger, but (seriously) trusts that nothing will happen. With contingent intent, the perpetrator accepts the realization of the danger. In other words: In the case of deliberate negligence, the perpetrator says to himself: “Nothing will happen.” In the case of contingent intent, however, he says to himself: “I hope nothing happens, but if it does, it will happen.” The demarcation is difficult.
In addition to the factual delimitation difficulty, there is also the fundamental difficulty in practice that the difference between deliberate negligence and contingent intent is merely the inner attitude of the perpetrator towards the possible realization of the danger. The judge cannot know this, however, he can only try to infer it from external circumstances. This is problematic with regard to the presumption of innocence .
Like all provisions that need to be interpreted , this delimitation is also subject to changing values. Currently (as of 2010) such a development is taking place, for example, in road traffic law : In the past, fatal accidents were practically always recognized as being negligent, even if the cause was an extremely excessive speed ("he trusted that it would be okay") ). There is a trend to increasingly assume contingent intent in such cases (“if you drive like this, you simply have to expect something to happen and you cannot claim afterwards that you did not expect it”).
In many legal systems, negligence is only punishable in circumstances for which this is expressly stipulated, for example in Germany in Section 15 of the Criminal Code or in Switzerland in Art. 12 no. 1 StGB. The problem is that it must be proven whether the perpetrator accepts a circumstance approvingly or whether he trusts that nothing will happen despite being aware of the risk. Often the perpetrator does not want the success to occur, but accepts it as a - possibly even undesirable - side effect of his action. The acceptance of the achievement of the actual success is subsumed under the contingent intent. There is broad agreement that, for criminal liability, contingent intent is sufficient if the offense in question does not provide otherwise.
Conditional intent is also usually sufficient for civil liability.
Jurisprudence and teaching
According to the prevailing opinion in Germany, there is contingent intent if the perpetrator seriously considers the success of the crime to be possible as a result of his actions and at the same time accepts it approvingly (in the legal sense). According to the Federal Court has consistently held means acquiescence to the success resign (endorsement theory, see " leather belt case ").
Other views see the conditional resolution for given,
- if the perpetrator considers the success of the crime to be purely possible (possibility theory),
- if the perpetrator not only considers the success of the crime to be possible but also to be likely (probability theory),
- if the perpetrator decides to act beyond the permitted risk (risk theory) or creates an unshielded danger for a legal asset (doctrine of unshielded danger),
- if the perpetrator accepts the success indifferently (indifference theory),
- if the perpetrator considers the success of the crime to be possible and does not want to avoid it (avoidance theory),
- if the perpetrator takes the success of the crime seriously and accepts it (theory of taking seriousness (h. L.); represented by, among others, von Kühl ),
- if the perpetrator seriously considers the success of the crime to be possible and resigns himself to it (Austria; legal definition; cf. Section 5 (1) Austrian Criminal Code : "Anyone who wants to bring about a situation that corresponds to a legal act; it is sufficient for the perpetrator to act seriously considers this realization possible and comes to terms with it ”).
Contingent willful attempt
Conceptually, a deliberate attempt is also possible, and in practice it is often recognized. So z. B. an untargeted shot can be rated as a possible deliberate attempt at killing, since the perpetrator had to accept that the projectile would happen to hit someone. The court has a very large scope for interpretation in this assessment and a limit can hardly be determined. In the case of offenses against life and limb, it could almost always be argued that the perpetrator also accepted a worse outcome, which just by chance did not occur.
The following case from Zurich shows how far this argumentation can go :
A man infected with the hepatitis C virus had regular unprotected sex with his girlfriend between February and April 2008. Even the prosecution assumed that infection through vaginal intercourse could not have occurred since hepatitis C is only transmitted through blood or anal intercourse. However, the defendant was sentenced to an unconditional fine in November 2008 for multiple unsuitable attempts to deliberately spread human diseases.
The reasoning of the public prosecutor's office was that the accused, as a layman, did not know that his actions were harmless, and that he subjectively accepted contagion. Since this did not take place, the attempt remained, and since it could not be done at all through sexual intercourse, the attempt was unsuitable.
The verdict was made by penal order . Since the convict waived an appeal, the penalty order became final. It remains to be seen how higher court instances would have assessed the case.
Legal situation in Switzerland
In Switzerland, the contingent intent has been defined in the penal code since January 1, 2007 , and its criminal liability is expressly stated: "Anyone who believes the act can be carried out and accepts it is already acting deliberately." This principle was previously undisputed in teaching and practice , but it has only been anchored in law since 2007.
- Wolfgang Frisch : Open questions about the dolus eventualis. In: NStZ 1991, 23 ff.
- Thomas Hillenkamp : 32 problems from criminal law, general part. Heidelberg 1999 (1st problem)
- Kristian Kühl : Criminal Law General Part. Munich 2002, § 5 Rn. 43 ff.
- Dan W. Morkel: Differentiation between intentional and negligent crime. In: NStZ 1981, 176 ff.
- Ingeborguppe : Conceptual concepts of the dolus eventualis. In: GA , Volume 153, 2006, 65 ff.
- Claus Roxin : Criminal Law. General part (Volume 1). 3. Edition. Beck Verlag, Munich 1997, ISBN 3-406-42507-0 , pp. 372-403.
- Eberhard Schmidhäuser: The line between deliberate and negligent crime. In: JuS 1980, 241 ff.
- Johannes Wessels / Werner Beulke : Criminal law general part. Heidelberg 2007, Rn. 214-230.
- ↑ Art. 12 no. 1 StGB.
- ↑ The example given is based on Swiss criminal law, but the basic problem is independent of country-specific details.
- ↑ Article in 20 minutes online from March 19, 2009.
- ↑ Art. 12 Swiss Criminal Code.