Guarantor (person)
The guarantor is a person who is legally responsible for ensuring that a certain criminally relevant success does not occur.
According to Section 13 (1) of the Criminal Code (StGB), the guarantor is responsible for his omission like a perpetrator. Therefore fails example guarantee a rescue action and there is the person to be protected to death, he will at the appropriate intent not only because of non-assistance to § 323c Criminal Code with imprisonment up to one year or a fine, but manslaughter or even murder by omission with Imprisonment not punished for less than five years or even life imprisonment ( § 212 , § 211 StGB).
Because of the different penalties, the question of whether there is a guarantor is of considerable importance. However , despite intensive efforts, jurisprudence has not yet been able to justify a guarantee in a manner capable of reaching a consensus. Legal practice and the predominant part of science are therefore content with a systematization of the recognized guarantor positions by means of case groups, which are to be divided into protector and supervisor guarantors according to the widely recognized functional theory of Armin Kaufmann .
A guarantor position is being discussed for:
- a special personal closeness in the family, for example between parents and children, siblings, married couples, in a civil partnership or after an engagement, even if the relationship is broken
- Public law obligations of police officers for the legal interests protected by criminal law in the context of their duties. A police officer is also obliged to inform his department about privately acquired knowledge of criminal acts, if these criminal acts extend into the phase of his duty and if there is a balance between the public interest in the prevention or prosecution of criminal offenses and the private interest of the civil servant in In view of the seriousness of the offense, the protection of his privacy results in a predominance of the public interest.
- Responsibility for previous actions ( ingerenz ): the person who created the danger of damage through his behavior is legally obliged to avert the occurrence of the damage to the best of his ability
- actual takeover within the framework of mutual contractual relationships and a special relationship of trust, e.g. B. in a permanent business relationship, by virtue of superior specialist knowledge or in general in situations in which one depends on the other revealing the circumstances relevant to his resolution
- Principal Liability . In each case, it is necessary to examine which specific behavior is to be required from the business owner and the responsible company employees in terms of criminal law in order to prevent violations of legal interests by third parties or the environment, as there is no “generally applicable, correct organizational structure” against which the necessary measures are measured could.
Web links
- Detlev Sternberg-Lieben : Criminal law - omission offense TU Dresden, 2017
- Thomas Hochstein: Legal meaning of the guarantor position: What do "failure to provide assistance" and "guarantor position" mean? Retrieved on June 25, 2020 (on the emergency medical assistance obligation and guarantor of emergency services).
Individual evidence
- ↑ Armin Kaufmann: The dogmatics of omission offenses. Göttingen: Schwartz, 1959.
- ↑ Requirements of the guarantor from special personal closeness (effective family community) September 4, 2017.
- ↑ BGH, decision of October 13, 2016 - 3 StR 248/16
- ↑ BGH, judgment of October 29, 1992 - 4 StR 358/92 = BGHSt 38, 388.
- ↑ BVerfG, decision of November 21, 2002 - 2 BvR 2202/01
- ↑ Higher Regional Court Nuremberg, decision of November 6, 2017 - 1 Ws 297/17 para. 31
- ↑ Holger Matt, Joachim Renzikowski, Karsten Altenhain et al .: Penal Code Verlag Franz Vahlen, Munich 2013, § 13, marginal no. 74 ff.
- ↑ Holger Matt, Joachim Renzikowski, Karsten Altenhain et al .: Penal Code Verlag Franz Vahlen, Munich 2013, § 13, marginal no. 87 ff.
- ↑ The dealing employee - and the criminal liability of the business owner April 17, 2018 (to BGH, decision of February 6, 2018 - 5 StR 629/17 )
- ↑ Thorsten Alexander: Guarantee obligation. In: The criminal responsibility for the observance of the traffic safety obligations in companies. Centaurus Verlag & Media , Herbolzheim 2005, pp. 29–115.
