custody

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The most criminally term used custody (from Middle High German gewarsame , "Security") corresponds to the predominantly civil law and public law of used term ownership . Custody and possession differ essentially in the area of ​​indirect possession and servitude . The indirect owner has possession, but not custody of an object . The property servant has no possession of the thing, but has custody.

Legal bases

Detention has, especially in the property crimes of §§ 242 et seq. Of the Criminal Code ( theft , robbery ) importance. According to the wording of the law, theft or robbery only occurs when the perpetrator takes something away from the victim. The removal consists of the breaking of the custody that the victim had on the matter and the establishment of new custody. If someone steals an item for which the victim was not in custody, then there is no theft, but at most embezzlement .

If a custody on something broken, previously located about as a result of securing or confiscation in hoheitlichem was detained, this is factually a custody breakage or entanglement fraction (each offense ). In

In the law refers to the custody according to prevailing opinion, the actual physical control of a natural person over a thing from a so-called. General physical control will (cf.. Herewith the general ownership will in civil law ), that the will of a thing in his custody sphere to have must be worn. This means that the will to rule does not have to consciously relate to every concrete thing in the area of ​​control in order to establish custody of the things. In the case of sleeping and unconscious people, there is talk of the potential will to rule , so that a breach of custody is possible here too. The assumption of actual physical rule depends on the view of daily life and the way people think about things; According to another view, custody is the socio-normative assignment of a thing to a person's sphere of rule. The advantage of this theory is that it is easier to arrive at the same results as the prevailing opinion. This requires many exceptions, which in the end leads to the dissolution of the main characteristic “actual property control”.

According to the prevailing opinion presented, custody still exists if the person in custody no longer has direct access to the matter, but could regain it at any time without someone else being able to become the person in custody in the meantime ( loosening of custody ). For example, the bicycle owner is still in custody of the bicycle if he has connected it to the station forecourt in his home town. A shopkeeper also has custody of all supplies in his shop as well as of the items lost and forgotten by his customers in the shop.

Establishment and transfer of detention

When a thing is handed over from one person to another person, the custody of the thing is always transferred, whereby it is irrelevant under property law whether this is done voluntarily or knowingly. The involuntary transfer is called a breach of custody, e.g. B. when a person hides unpaid goods in clothing.

A thing that was not previously in anyone's custody can be established by taking (temporary) possession of it. So the finder of a thing gets custody of that thing.

A detainee can give up custody by giving up physical control. For example, one loses custody of an item through transfer of ownership (including donation) or dereliction (discarding, e.g. by throwing it in a public garbage can).

literature

Individual evidence

  1. ^ Definition of custody
  2. ↑ so Wolfgang Bittner: "The concept of detention and its meaning for the systematics of property offenses", Diss. Göttingen 1972.
  3. ↑ See also Jan Zopfs, Goltdammer's Archiv für Strafrecht 11/2011, pp. 670–672.