In German criminal law, the endangered offense describes a type of offense whose facts either describe an act that triggers a violation of legal interest or describes an act which, without the factual description of the occurrence of a danger, is punishable because it can easily trigger a specific danger.
The description follows the distinction between “concrete” and “abstract” high-risk offenses. “Concrete” endangering offenses belong to the group of successful offenses because the law already regards the danger as a success of the act. “Abstract” high-risk offenses are close to mere activity offenses, since the “dangerousness” here is a legislative threat of punishment and not a constituent element .
Abstract hazard offenses
In the case of abstract high-risk offenses, the legislature criminalizes cases that involve activities that generally appear dangerous to them.
An example of an abstract high-risk offense is the first case of serious arson in accordance with Paragraph 1, No. 1 of the Criminal Code. Legal interest here is human life and the object of legal interest is therefore a living person. To complete the act, however, all that is necessary is to set the buildings on fire (in contrast to Section 306a (2) of the Criminal Code, which requires a specific hazard).
Further examples are:
- Drunkenness in traffic , StGB
- Driving a motor vehicle under the effect of an intoxicating substance , (2) sentences 1 and 2 StVG
- Abuse of titles, job titles and badges , StGB
- Threat , StGB
In the case of abstract dangerous offenses, a distinction must also be made as to whether
- concrete, individual legal interests are endangered (e.g. physical integrity, concrete human dignity ), or at least initially abstract or not precisely definable legal interests such as morality , public morality or human dignity in the abstract sense. The relation to real people z. The Federal Constitutional Court created human dignity, for example, with the theory of spheres or the object formula , since it represents the central value of the legal system, see Art. 1 I GG.
- a hazard has been proven (such as the reduced / inability to drive due to drunkenness), or is merely suspected or supported by controversial evidence (e.g. media with fictional or virtual depictions of violence , in which a stimulating or beneficial effect for corresponding real actions is suspected).
- the risk reaches a significant extent or only leads to a violation of a legal interest in absolute individual cases.
Examples of abstract high-risk offenses without a specific individual legal interest are, for example, offenses of moral harm to young people through the media .
Concrete endangerment offenses
Concrete endangerment offenses are, according to the prevailing opinion, success offenses . A success that is part of the offense must have occurred for completion. However, what is required is not, for example, injury to a person, but rather a hazard or a risk of success.
An example of a specific dangerous offense in German criminal law is the offense of dangerous interference with road traffic ( Criminal Code). A so-called near-accident is seen as a specific risk in the sense of dangerous interference with road traffic.
Another example of a specific endangered offense is causing an explosive explosion in accordance with Criminal Code. Here, too, it is part of the offense that the perpetrator “thereby endangers the life or limb of another person or other people's property of significant value”.
A third example is the second paragraph of Section 306a StGB, already delimited above (second group of cases of serious arson). According to the facts of the case, this requires that the perpetrator, by setting fire etc., “puts another person at risk of damage to health”. For this, "the safety of a certain person must be so severely impaired that it only depends on chance whether their health is injured or not". This specific jeopardizing offense is in contrast to the cases in the first paragraph of Section 306a of the Criminal Code as an abstract jeopardizing offense (see above).
- Claus Roxin : Criminal Law. General part. (Part 1). 4th edition. Beck Verlag, Munich 2006, ISBN 3-406-53071-0 , § 11, Rn. 153-163
- Dreher / Tröndle : Criminal Code and ancillary laws , CH Beck, Munich 1995, before § 13 Rnr. 13a.
- Frederike Seitz, Maximilian Nussbaum: Arson offenses. JuS 2019, pp. 1060-1066 (1060), beck-online.
- Federal Court of Justice: Order of January 26, 2010, file number 3 StR 442/09 .
- Thomas Rönnau: Basic Knowledge - Criminal Law: Success and Activity Offenses, JuS 2010, pp. 961–963, beck-online.
- Federal Court of Justice : Order of October 27, 1988, file number 4 StR 239/88 .
- Federal Court of Justice: judgment of March 30, 1995, file number 4 StR 725/94 .
- Federal Constitutional Court : Order of December 21, 2004, file number 1 BvR 2652/03 , paragraph 18.
- Jena Higher Regional Court : judgment of December 15, 1997, file number 1 Ss 206/96 .
- Federal Court of Justice: Order of November 8, 2005, file number 1 StR 455/05 .
- Teresa Göttl: The subjective facts of the dangerous offenses: An analytical comparison with the injury offenses using the example of the road traffic offenses. JuS 2017, pp. 306-310 (306), beck-online.
- Federal Court of Justice: judgment of May 11, 1978, file number 4 StR 161/78 .
- Federal Court of Justice: Order of November 3, 2009, file number 4 StR 373/09 .
- Federal Court of Justice: judgment of February 10, 2015, file number 1 StR 488/14 .
- Federal Court of Justice: Order of December 2, 2008, file number 3 StR 441/08 .