negligence

Negligence is a technical term that is particularly common in legal language . In addition to intent , negligence describes another form of fault and the associated inner attitude of the perpetrator towards the facts he has carried out . It means that the perpetrator disregarded the care required in traffic when the offense occurred and when it was the cause . The objective breach of the duty of care is assessed in the light of the objective predictability of the success. A definition can be found in Section 276 (2) BGB . The criminal law mentions the term in § 15 StGB without defining it. The terms used for negligence do not have to have the same meaning.

Colloquially, negligence means that an action is carried out “carelessly” or “irresponsibly”. A person acts negligently if he proceeds without the caution required in his case .

Germany

civil right

Claims from contractual disruptions in performance and breaches of duty as well as claims from unlawful acts are checked for illegality and must be represented to determine the fault of the debtor . The standard of liability is based on the extent to which someone is responsible for their own behavior or that of others. In German civil law, having to represent is based on the principles of § 276 BGB. According to §§ 276 Paragraph 1, 827 and 828 BGB, the requirement for this is that the debtor is at fault . Insofar as the intent is characterized by the knowledge and willingness of circumstances giving rise to liability, negligence in accordance with Section 276, Paragraph 1, Clause 2 of the German Civil Code means: “Failure to exercise the care required in traffic”. The care required in traffic means that a (conscientious) member of the respective group, to be specified as a professional group or as a group of road users and the like, can expect a certain pattern of action in the specific situation. The standard of negligence is the objectively required care, not the usual care. He then disregards due diligence if he does not observe it, although the avoidability of the illegal success is foreseeable for him. An alternative behavior in the respective situation must also be reasonable for the debtor. A special form is the need to know according to § 122 paragraph 2 BGB. Knowing is the ignorance caused by negligence.

Anyone who participates in legal transactions must be able to rely on the other participant acting with the care required for his activity . If the other right-hand traffic participant cannot do this for reasons of age, illness or lack of knowledge, he is violating the necessary care. Everyone must be able to rely on the fact that a professional driver, for example, can safely control his vehicle. With regard to fault, reaction deficits cannot be credited as a personal complication and thus as a liability mitigating.

Levels of negligence

Civil law distinguishes between two types of negligence. Simple negligence in the sense of Section 276, Paragraph 2 of the German Civil Code (BGB) described above is present if the “ care required in traffic is disregarded”. Gross negligence is not defined by law. It is accepted if "the due diligence required in traffic has been violated to an unusually high degree or if obvious considerations have not been made".

Labor law also knows special cases : In the context of simple negligence, case law still distinguishes between moderate negligence and slightest negligence .

Criminal law

The criminal law only provides for a criminal liability for negligent behavior according to § 15 StGB if this is expressly threatened with a penalty.

German criminal law does not explicitly adopt the classification and definition of unconscious and conscious negligence from civil law; However, the prevailing opinion and above all the case law are based on Section 276 (2) of the German Civil Code (BGB), which defines negligence as neglecting the due care required in traffic: essential components of the negligence check are therefore the violation of an objective duty of care with objective predictability of success ( Recognizability). The due diligence standard corresponds to the requirements for a level-headed and conscientious person in the specific situation and social role. If the perpetrator has special knowledge, this is included in the requirement profile. It is delimited by a principle of trust. Those who behave in accordance with the duty of care should also be able to trust that their fellow human beings will do the same, as long as there are no indications to the contrary. This legal train of thought is embedded in the voting modes in traffic in general: A negligent person does not want to consciously violate the legal system. If all of his mental powers had been strained, however, he could have recognized that his actions could have been dangerous for a protected legal asset. In the concrete factual situation, the perpetrator should have been able to acquire the awareness of the act and thus of the wrongdoing.

Levels of negligence

The deviation of actual behavior from due diligence has different forms, which is why criminal law differentiates between conscious and unconscious negligence. In the case of deliberate negligence ( lat . Luxuria ), the perpetrator knows "the possibility of realizing the facts, but unlawfully and reproachably reckons that it will not be successful". However, if the perpetrator expects success to occur, there is much more contingent intent than deliberate negligence . The unconscious negligence (lat. Negligentia ), however, is characterized in that the offender leaves the due diligence aside without to recognize this. With a proper effort he could have foreseen and prevented the onset of success with the care required and reasonable in traffic. As an increase to conscious or unconscious negligence, there is frivolity (Latin culpa lata ). This is a particularly serious breach of duty in which the agent grossly disregards the due diligence.

Objective imputation and guilt

The act of negligence is objectively attributed to the perpetrator if the breach of duty was relevant to the occurrence of success and therefore no legitimate alternative behavior can be identified. A causality check is thus carried out for the context of non-compliance .

In the context of guilt , the question of personal reproach of the act arises. The form of guilt lies in the charge of negligence . The subjective breach of duty of care depends on the individual skills and knowledge of the perpetrator. In addition to the objective avoidability and predictability, subjective avoidability and predictability must be attested. In addition, a potential awareness of injustice is required. The perpetrator is often relieved of excuses , in particular the unreasonableness of norm-compliant behavior in special conflict situations. This means that the perpetrator is not accused of guilt.

Offense and negligence

It is controversial whether there is a differentiation between perpetration and participation in the acts of negligence. The prevailing opinion so far has represented the principle of unity offenders, which denies such a differentiation. According to the principle of unity, everyone is liable for any negligent successful offense that caused the result negligently. However, this was not fully maintained. The doctrine of the prohibition of recourse must be observed in this context. Recently, negligent complicity has become increasingly accepted. This construction is based on the need, in cases in which causality cannot be proven, to arrive at a simple and reliable justification for criminal liability by complicit attribution of contributions to the crime. It is doubtful to what extent a negligent complicity presupposes a joint decision to act. The prevailing opinion demands such a mutual promise of mutual contributions. According to another opinion, it is sufficient if several people contribute to an unauthorized work.

Special problems and cases

• The carelessness (characteristic of several successful offenses ) corresponds to the concept of gross negligence in the BGB, but it is based on the personal abilities of the perpetrator. The carelessness thus represents an increase in negligence.
• Below average knowledge or skills lead to h. M. not to a reduced standard of due diligence at the factual level. At best, these lead to an exclusion of guilt, but then a takeover fault should be considered.
• According to h. M. considerable. Example: A biologist employed as a temporary waiter recognizes a poisonous fruit in the food for the guest when serving and is therefore obliged to use this specialist knowledge and to point out the danger .
• The consideration of above-average abilities when assessing the existence of negligence or due diligence is very controversial. On the one hand, it is argued that the “more capable offender” (e.g. a specialist doctor is said to have been guilty of negligent bodily harm due to a malpractice) should not be punished any more than a “simple” non-specialist doctor. On the other hand, it is stated that an optimal effort should be expected for optimal legal protection; this should apply in particular if the abilities of the perpetrator are known and precisely because of this, for. B. this was appointed as a doctor.

Decriminalization

The decriminalization of negligence offenses is a constant topic of discussion. However, the protective effect of the basic rights from Art. 2 Para. 2 S. 1 in conjunction with the law speaks against the decriminalization of negligent bodily harm and negligent homicide . V. m. Art. 1 para. 1 GG . However, while observing the basic rights, a limitation of the punishment is necessary because criminal law should only be the last resort (lat .: ultima ratio ) of the state sanction. In view of the ever-evolving risks in a technology society, there should not be an ever more extensive criminal law, as otherwise the commission of criminal offenses would become the norm and not remain an exception.

Examples of negligent criminal offenses

• Disclosure of state secrets ( Section 97 StGB)
• Acts of sabotage against means of defense ( Section 109e (5) StGB)
• Negligent wrongdoing; negligent false affidavit in lieu of oath ( § 161 , § 163 StGB)
• Negligent homicide ( § 222 StGB)
• Negligent bodily harm ( § 229 StGB)
• Bankruptcy ( Section 283 Paragraph 4, 5 StGB)
• Violation of the accounting obligation ( Section 283b (2) StGB)
• Negligent arson ( Section 306d StGB)
• Creation of a fire hazard ( § 306f StGB)
• Causing an explosion through nuclear energy ( Section 307 Paragraphs 2, 3, 4 StGB)
• Causing an explosive explosion ( Section 308 (5) and (6) StGB)
• Release of ionizing radiation ( Section 311 (3) StGB)
• Incorrect manufacture of a nuclear facility ( Section 312 (6) of the Criminal Code)
• Dangerous interference in rail, ship and air traffic ( Section 315 (5) and ( 6) StGB)
• Risk to rail, ship and air traffic ( Section 315a (3) StGB)
• Dangerous interference with road traffic ( Section 315b Paragraph 4, 5 StGB)
• Endangerment of road traffic ( § 315c Abs. 3 StGB)
• Drunkenness in traffic ( Section 316 (2) StGB)
• Disruption of telecommunications systems ( Section 317 (3) StGB)
• Damage to important facilities ( Section 318 (6) StGB)
• Building risk ( § 319 Paragraph 3, 4 StGB)
• Full intoxication ( § 323a StGB)
• Water pollution ( Section 324 (3) StGB)
• Soil pollution ( Section 324a (3) StGB)
• Air pollution ( Section 325 (4) StGB)
• Causing noise, vibrations and non-ionizing radiation ( Section 325a (3) StGB)
• Unauthorized handling of hazardous waste ( Section 326 (5) StGB)
• Unauthorized operation of systems ( Section 327 (3) StGB)
• Unauthorized handling of radioactive substances and other dangerous substances and goods ( Section 328 (5) StGB)
• Endangering areas in need of protection ( Section 329 (5) StGB)
• Serious risk from the release of poisons ( Section 330a Paragraph 4, 5 StGB)
• Violation of official secrecy and a special duty of confidentiality ( Section 353b (1) StGB)

In addition, successful qualifications i. S. d. § 18 StGB of an intentional basic offense with regard to the aggravating consequences already punished in case of negligence, z. B .:

• Suspension resulting in serious damage to health ( Section 221 (2) No. 2 StGB)
• Suspension resulting in death ( Section 221 (3) StGB)
• serious bodily harm ( § 226 StGB)
• Bodily harm resulting in death ( Section 227 StGB)
• Deprivation of liberty if the perpetrator has deprived the victim of liberty for more than a week ( Section 239, Paragraph 3, No. 1 of the Criminal Code) (according to a minority opinion, no qualification for success, but (intentional) independent qualification)
• Deprivation of liberty resulting in serious damage to health or death ( Section 239 Paragraph 3 No. 2, Paragraph 4 StGB)
• Arson resulting in serious damage to health ( Section 306b (1) StGB)
• Causing an explosive explosion resulting in serious damage to health ( Section 308 (2) StGB)
• Misuse of ionizing radiation with serious damage to health ( Section 309 (3) StGB)
• Incorrect manufacture of a nuclear facility resulting in serious damage to health ( Section 312 (3) StGB)
• Dangerous interference in rail, ship and air traffic with the consequence of serious damage to health ( Section 315 (3) No. 2 StGB)
• Dangerous interference in road traffic with the consequence of serious damage to health ( Section 315b (3) StGB)

Frivolous offenses: (often also as a successful qualification for an intentional basic offense )

Economic negligence concept

The best-known term of negligence in the economic analysis of law goes back to the US judge Learned Hand in United States v. Carroll Towing Co. back. The learned hand formula developed by him in 1947 states that those who are reluctant to act are those who shy away from investing risk avoidance costs that are lower than the expected value of the corresponding damage. In the specific case, it was about the trouble of correctly mooring a barge so that it does not drift away and damage other boats.

Risk avoidance costs (V) describe the effort required to prevent possible damage ; the expected value of the damage represents, in simplified form, the amount of possible damage (S) at its occurrence multiplied by the probability (P) of its occurrence.

Negligence is therefore to be answered in the affirmative if the following applies:

${\ displaystyle V

This theory is known in the English-speaking world as the calculus of negligence . The economic negligence concept is criticized because it does not offer a judge any concrete action: How high is the probability of damage? What damage is to be avoided with preventive treatment? With the conventional term negligence, the judges can fall back on the precautionary measures and duties of care that are customary in the specific area in order to limit the negligent behavior. In addition, it is precisely in the nature of a negligence offense that the perpetrator does not consider the probability and extent of possible damage. In addition, the same negligence (with the same avoidance effort V) can result in various types of damage. The defective brakes of a road vehicle can, simply by being lucky, cause no damage at all - or even several fatalities.

Despite these limitations can expectation of damage to be detected when the experts probabilities P i j, k, ... of all the potential damage S i j, k, ... estimate.

literature

• Ellen Schlüchter : Limits of Criminal Negligence. Aspects of a criminal law in Europe. EuWi-Verlag, Thüngersheim u. a 1996, ISBN 3-89633-002-0 .
• Christian Birnbaum : The frivolity - between negligence and intent (= Berlin contributions to jurisprudence. Vol. 1). Weißensee-Verlag, Berlin 2000, ISBN 3-934479-19-7 (also: Dresden, Technical University, dissertation, 2000).
• Claus Roxin : Criminal Law. General part. Volume 1: Basics. The Structure of Crime Doctrine. 3. Edition. Beck, Munich 1997, ISBN 3-406-42507-0 , pp. 916-962.