Endangering road traffic

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The endangerment of road traffic , colloquially also road traffic hazard , is an offense of the German criminal law . It is one of the public dangerous offenses and is standardized in the 28th section of the special part of the Criminal Code (StGB) in § 315c .

The legal norm represents a specific endangerment offense: It makes it a punishable offense to cause danger to the life and limb of third parties or to property of significant value through risky behavior in road traffic. It is therefore closely related to the offense of dangerous interference with road traffic , which is regulated in Section 315b of the Criminal Code. This records dangerous behavior through which outsiders intervene in road traffic. In contrast, § 315c StGB only covers the behavior of road users.

A prison sentence of up to five years or a fine can be imposed for endangering road traffic .

Normalization

Since its last change on April 1, 1998, the offense of endangering road traffic according to § 315c StGB has been as follows:

(1) Anyone in road traffic

1. Drives a vehicle even though it does
a) as a result of the consumption of alcoholic beverages or other intoxicating substances or
b) as a result of mental or physical deficiencies
is unable to drive the vehicle safely, or
2. grossly illegal and inconsiderate
a) does not respect the right of way,
b) overtaking incorrectly or otherwise driving incorrectly when overtaking,
c) drives incorrectly at pedestrian crossings,
d) drives too fast at blind spots, at road crossings, road junctions or level crossings,
e) does not keep to the right side of the lane at blind spots,
f) turns around on motorways or motorways, drives backwards or against the direction of travel or tries to do so or
g) does not indicate stopping or broken-down vehicles at a sufficient distance, although this is necessary to secure traffic,

and thereby endangering the life or limb of another person or property of significant value is punishable by imprisonment of up to five years or a fine.

(2) In the cases of Paragraph 1 No. 1, the attempt is punishable.

(3) Who in the cases of paragraph 1

1. caused the danger negligently or
2. acts negligently and negligently causes the danger,

is punished with imprisonment for up to two years or with a fine.

Due to the standard range of penalties of up to five years' imprisonment or a fine, Section 315c StGB is an offense .

It is disputed which legal interests are protected by the standard. Some legal scholars assume that Section 315c of the Criminal Code is intended solely to protect general road safety. Others, on the other hand, place the protection of life, limb and property of those specifically endangered at the center of the norm. According to another view, Section 315c of the Criminal Code protects both the general public and those specifically at risk. While some voices assume that both goods are of equal importance to one another, case law regards the protection of road traffic as a primary regulatory objective over the protection of individuals. The determination of the protective purpose is particularly important for the question of whether the victim at risk from the act can consent to the act with justifying effect .

History of origin

The forerunner of Section 315c of the Criminal Code was Section 315a of the Criminal Code, introduced in 1953 , which made various types of traffic illegal. By the Second Law for the Safety of Road Traffic of November 26th, 1964 this fact was split up into several legal norms, whereby § 315c StGB was created. The legislature expanded the provision in 1974 and 1986 to include further acts. The last change to the norm so far, which was only of a linguistic nature, was made by the Sixth Criminal Law Reform Act of 1998.

Objective fact

Acts

Section 315c of the Criminal Code names numerous acts that can constitute a criminal liability for endangering road traffic. These are divided into two numbers. Number 1 covers driving a vehicle in a state of driving uncertainty, number 2 covers driving practices that are grossly illegal.

Section 315c of the Criminal Code is a handwritten crime : the only perpetrator can be someone who uses a means of transport on public roads. For this reason, the offense cannot be committed either as complicity or as indirect perpetrator . Motor vehicles in particular come into consideration as vehicles, as well as other motorized vehicles and bicycles. Driving presupposes that the perpetrator starts or stops the vehicle.

Leading in a state of driving uncertainty

Driving is unsafe if you are not able to drive your vehicle as expected from a driver.

Driving insecurity can be triggered by the consumption of intoxicating substances. These include drugs and narcotics such as heroin and cocaine . Alcoholic beverages can also be used as intoxicants . Legal practice largely assesses the conditions under which alcohol consumption leads to inability to drive on the basis of the driver's blood alcohol concentration (BAC). From a BAK of 1.1 ‰, the case law assumes that the vehicle driver is irrefutably unsafe to drive. For cyclists, this limit is 1.6 ‰. In jurisprudence, this is referred to as absolute inability to drive. With values ​​between 0.3 and 1.09 ‰, the driver is unfit to drive if he shows signs of alcohol-related failure, for example driving in serpentine lines or reduced ability to react. Here one speaks of a relative inability to drive.

The case law has not yet set absolute limit values ​​in the area of ​​other intoxicating substances. It is also disputed whether drugs taken for intoxication also constitute intoxicating substances within the meaning of Section 315c of the Criminal Code.

Inability to drive can also be triggered by a mental or physical deficiency. These include permanent defects, for example myopia , which cannot be compensated for by a visual aid . Temporary deficiencies, such as considerable fatigue, are also recorded . This variant has little practical relevance compared to the inability to drive due to noise.

Grossly illegal driving style

Section 315c (1) number 2 of the Criminal Code finally names seven driving styles that can constitute a criminal liability for endangering road traffic. These are particularly serious traffic violations, which in legal science are referred to as the seven deadly sins of the driver. These include disregarding the right of way, driving incorrectly when overtaking or at pedestrian crossings and driving too fast in dangerous places.

The violations mentioned can only constitute a criminal liability if they are grossly unlawful. Anyone who violates a traffic regulation in a particularly serious manner acts grossly illegal. This is typically how it is when overtaking in a corner that cannot be seen.

Danger

A criminal liability according to § 315c StGB also presupposes that the perpetrator causes a specific threat to one of the objects of danger named in the legal norm.

Real danger

According to the prevailing view in jurisprudence, there is a specific risk if the matter presents itself as a near-accident. This is the case if, from the point of view of a third party, the act gives the impression that it depends purely on chance whether there is an accident, i.e. the perpetrator is not in control of the occurrence. This was affirmed by case law, for example, in a case in which the perpetrator fled from the police in his vehicle and only barely escaped collisions with other road users. If damage actually occurs, there was usually a specific risk immediately before the damage occurred.

Hazardous objects

On the one hand, the life and limb of another person come into question as objects of danger. It is controversial in jurisprudence whether those involved in the crime , such as instigators and assistants, are also other people in the sense of the norm. In the opinion of the case law, this is not the case, since they cannot be protected by the facts of the case through their participation in the act.

On the other hand, things of significant value come into question as objects of danger. The offender's vehicle does not represent a dangerous object, since the object with which the offense is realized cannot be protected by the offense at the same time. When a significant value can be assumed is a matter of dispute in jurisprudence. According to the case law, the value limit was previously 1,500 German marks , today it is 750 euros . Different voices in jurisprudence estimate higher values, around 1,000 euros or 1,300 euros.

Attribution

The threat must be because of the term by the fact causally based and on the conduct of the offender to him objectively attributable to his.

Subjective fact

Criminal liability under Section 315c (1) of the Criminal Code requires, in accordance with Section 15 of the Criminal Code, that the perpetrator acts with at least conditional intent with regard to the objective facts . To do this, he must recognize the circumstances of the offense and accept the realization of the facts.

According to Section 315c (3) of the Criminal Code, criminal liability for endangering road traffic is also possible if the perpetrator intentionally commits a traffic offense and merely caused the danger through negligence. It is also sufficient for criminal liability if the perpetrator acts negligently with regard to both elements of the offense. In both combinations of negligence, the scope of the penalty is reduced to imprisonment for up to two years or a fine.

If the criminal liability is based on the commission of a grossly illegal act, the offender must also act ruthlessly. Anyone who disregards his obligations to other road users for selfish reasons or who, out of indifference, does not give rise to concerns about his behavior from the outset, acts recklessly. The requirement of reckless behavior also applies to negligent inspection. The fact that it is more difficult to prove inconsiderate but also negligent behavior results in a practically narrow scope of application of the standard in the negligence variant.

illegality

In principle, making a criminal offense is illegal. The illegality can, however, be eliminated by intervening on grounds of justification. In connection with Section 315c of the Criminal Code, jurisprudence particularly discusses justification through the consent of the person at risk. It is controversial whether consent in Section 315c StGB is possible. Consent presupposes that the legal interest protected by the offense is at the disposal of the individual. Consent is therefore excluded if one assumes that Section 315c StGB alone or at least predominantly protects the safety of road traffic. Therefore, numerous voices, including case law, reject the possibility of consent. If, on the other hand, one regards individual interests as protected, justifying consent is possible. However, the possibility of consent is limited by the protection of life, which according to § 216 StGB is not at the disposal of the legal guardian. Consent to a life endangerment is therefore excluded at least if it is immoral according to § 228 StGB . This applies if the perpetrator consents to a specific danger of death.

attempt

Due to the nature of the offense of endangering road traffic, the criminal liability of the attempt in accordance with Section 23, Paragraph 2 of the StGB must be expressly stipulated in the law. Such is contained in Section 315c (2) StGB for driving in a state of driving uncertainty.

Litigation and sentencing

As an official offense, the act is prosecuted ex officio , so that a criminal complaint by a person at risk is not required for prosecution.

The endangerment of road traffic is deemed to have ended when the endangerment has occurred. From this point begins according § 78a of the Criminal Code, the limitation period . Due to the range of sentences of up to five years imprisonment in accordance with Section 78 Paragraph 3 Number 4 StGB, the period is five years.

Law competitions

If further offenses are committed in connection with an act according to § 315c StGB, these are in legal competition to endanger road traffic .

Driving a vehicle in traffic in a state of intoxication-related inability to drive is an independent criminal offense in accordance with Section 316 of the Criminal Code. Due to the fact that there is no concrete risk, this is an abstract risk offense . This is superseded as subsidiary by Section 315c of the Criminal Code.

If the offender endangers several people and things through one behavior, this constitutes an act as a whole.

literature

  • Thomas Fischer: Criminal Code with subsidiary laws . 65th edition. CH Beck, Munich 2018, ISBN 978-3-406-69609-1 , § 315c .
  • Wolfgang Joecks, Christian Jäger: Criminal Code: Study Commentary . 12th edition. CH Beck, Munich 2018, ISBN 978-3-406-67338-2 , § 315c .
  • Peter König: § 315c . In: Heinrich Wilhelm Laufhütte (Ed.): Leipzig Commentary on the Criminal Code . 12th edition. tape 8: §§ 306-323 . De Gruyter, Berlin 2008, ISBN 978-3-89949-564-5 .
  • Christian level: § 315c . In: Wolfgang Joecks, Klaus Miebach (Hrsg.): Munich Commentary on the Criminal Code . 2nd Edition. tape 5 : §§ 263–358 StGB. CH Beck, Munich 2014, ISBN 978-3-406-60290-0 .
  • Frank Zieschang: § 315c . In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .

Web links

Individual evidence

  1. ↑ a b Frank Zieschang: § 315c , Rn. 1. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  2. ↑ Peter König: § 315c , Rn. 3. In: Heinrich Wilhelm Laufhütte (Ed.): Leipzig Commentary on the Criminal Code . 12th edition. tape 8: §§ 306-323 . De Gruyter, Berlin 2008, ISBN 978-3-89949-564-5 .
  3. ^ Frank Zieschang: § 315c , Rn. 6. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  4. ↑ a b BGHSt 23, 261 (264).
  5. ^ Frank Zieschang: § 315c , Rn. 7-8. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  6. ^ Frank Zieschang: § 315c , Rn. 13. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (eds.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  7. ↑ BGHSt 37, 89 .
  8. ↑ OLG Karlsruhe, judgment of July 28, 1997, 2 Ss 89/97 = New Journal for Criminal Law Jurisprudence Report 1997, p. 356 (357).
  9. ↑ BGHSt 22, 352 (360).
  10. ^ LG Freiburg, judgment of August 2, 2006, 7 Ns 550 Js 179/05 - AK 38/06 .
  11. ^ Frank Zieschang: § 315c , Rn. 31. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  12. ↑ a b BGHSt 5, 392 (395).
  13. ↑ BGH, judgment of December 10, 2009, 4 StR 503/09 = New Journal for Criminal Law 2011, p. 443.
  14. ^ BGH, judgment of August 22, 1996, 4 StR 267/96 = New Journal for Criminal Law Jurisprudence Report, p. 18.
  15. ↑ BGHSt 6, 100 (102).
  16. ↑ BGH, decision of April 16, 2012, 4 StR 45/12 = New Journal for Criminal Law 2012, p. 701.
  17. ↑ BGHSt 27, 40 (43).
  18. ↑ BGH, decision of January 19, 1999, 4 StR 663/98 = Neue Zeitschrift für Strafrecht 1999, p. 350 (351).
  19. ↑ BGHSt 48, 119 (121).
  20. ^ BGH, judgment of September 28, 2010, 4 StR 245/10 = Neue Zeitschrift für Strafrecht 2011, p. 215.
  21. ^ Wolfgang Joecks, Christian Jäger: Criminal Code: Study Commentary . 12th edition. CH Beck, Munich 2018, ISBN 978-3-406-67338-2 , § 315c , Rn. 16.
  22. ↑ Bernd Hecker, Detlev Sternberg-Lieben: § 315c , Rn. 31. In: Adolf Schönke, Horst Schröder, Albin Eser (ed.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  23. ^ Rudolf Rengier: Criminal Law Special Part II: Offenses against the person and the general public . 17th edition. CH Beck, Munich 2016, ISBN 978-3-406-68815-7 , § 44, Rn. 23.
  24. ↑ Kristian Kühl: Criminal Law General Part . 7th edition. Vahlen, Munich 2012, ISBN 978-3-8006-4494-0 , § 5, Rn. 43.
  25. ↑ Martin Heger: § 315c , Rn. 32. In: Kristian Kühl, Martin Heger: Criminal Code: Comment . 29th, revised edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 .
  26. ^ Frank Zieschang: § 315c , Rn. 59. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (Ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  27. ^ Rudolf Rengier: Criminal Law Special Part II: Offenses against the person and the general public . 17th edition. CH Beck, Munich 2016, ISBN 978-3-406-68815-7 , § 44, Rn. 19a.
  28. ↑ Jörg Eisele: The offense of endangering road traffic (§ 315c StGB) . In: Juristische Arbeitsblätter 2007, p. 168 (172).
  29. ↑ BGHSt 53, 55 (62-63).