Guarantee obligation

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In criminal law, guarantor duty refers to the obligation to ensure that a certain factual outcome does not occur (compare to German criminal law § 13 StGB). It is a prerequisite for a criminal liability for omission , as far as it is a so-called spurious omission offense. The obligated person is called guarantor . The (violation of) the guarantee obligation is one of the illegality features .

Guarantor position

The guarantee obligation is justified by the position of the guarantor. According to Section 13 of the Criminal Code, this presupposes the existence of a special obligation at the factual level. The individual circumstances that justify them are unwritten elements of the fraudulent omission offenses . The compliance clause of Section 13 of the Criminal Code requires that positive action and failure to do so are of equal value so that the guarantor can become legally relevant.

In the so-called theory of functions , two basic types of guarantor positions are assumed, which in turn can have different reasons for their origin. These are determined in particular with the legal sources . Less important is the sociological guarantee doctrine , which tries to derive the guarantee position from social norms and morals. In the theory of recourse to individual basic elements , an attempt is made to identify the substantial core elements in the guarantor positions.

Guarantor according to the function theory

Legal obligation to protect legal interests (protector guarantee)

The position of guarantor can result from the fact that a person is in a position of duty in which he is responsible for ensuring that an existing legal asset is protected from damage. This can result from:

in § 323c StGB.

Legal obligation to protect against a certain source of danger (supervisor guarantee)

The guarantor position can also be given if a person is in a position of duty in which he is responsible for ensuring that the dangers emanating from a certain source of danger do not materialize. You can z. B. result from:

  • Traffic safety obligations (also voluntary assumption of safety obligations) z. B. Home / property owners, car owners, dog owners,
  • placing dangerous objects on the market,
  • Obligation to supervise third parties, e.g. B. via a prisoner, mentally ill (not among spouses)
  • Dangerous previous behavior contrary to duty ( Ingerenz ), e.g. B. the driver who improperly caused the accident

Guarantor position according to the legal sources

According to the doctrine of legal sources, the guarantor can result in particular from the law and other norms or a contract:

Examples with legal sources:

  • Parents as guarantors for their children ( § 1626 BGB)
  • Guarantor position of spouses ( § 1353 BGB), also applicable to other close community and trust relationships
  • Managing director / board member of a company (e.g. § 43 GmbHG)
  • Obligations to assume responsibility from a contract (e.g. educator, security service at events)
  • Obligations within the framework of a voluntary acceptance within the framework of a risk community (cf. § 705 ff.BGB, e.g. joint mountain expedition)
  • Providing guarantees from the opening and control of sources of danger (occupational safety, traffic regulations, environmental protection regulations, etc.)
  • Ingerenz : previous conduct contrary to duty, e.g. B. Unauthorized serving of alcohol to clearly drunk people ( Section 20 No. 2 GastG)


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