Basic fact

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The basic offense in criminal law forms the initial form of each type of crime. It contains the minimum requirements for criminal liability for a specific act or omission . There are variations to the basic offense. The most important group of variations of the facts of the case are those of the qualifying and privileging variations, there are also dependent and independent variations.

Example: The basic offense of bodily harm in German criminal law

The following example is intended to aid understanding, but does not describe the complete system of crimes against physical integrity .

  • The injury is in § 223 of the Criminal Code regulated. The legal offense requires that the perpetrator “physically abuses another person or damages their health”. So every willful act that restricts the physical integrity of another person is sanctioned. Anyone who fulfills this offense "is punished with imprisonment for up to five years or a fine".
  • In order to counter the particular injustice of certain types of commission or the consequences of bodily harm, the legislature has also created § 224 , § 225 , § 226 and § 227 StGB. Therefore, § 223 StGB is an indispensable level of passage in the legal expert examination, which must be checked first before the following paragraphs on bodily harm can be examined.
  • Section 224 of the Criminal Code (Dangerous Bodily Injury) sanctions ways of committing the offense that are likely to cause severe to very serious consequences for the victim (e.g. by means of poison, by means of a weapon or with the help of a person involved). Due to the dangerous nature of the offense for the victim and the fact that the offense is more unlawful than the basic offense of Section 223 of the Criminal Code, the sentence is increased to “imprisonment from six months to ten years” compared to the basic offense.
  • Section 225 of the Criminal Code (mistreatment of wards) protects minors and defenseless people who are particularly dependent on special state protection. Due to their defenselessness, a particular degree of reproach is expressed in the case of the realization of the facts, which also justify an increased sentence. The mistreatment of aperson underprotection requires a prison sentence of six months to ten years according to Section 225, Paragraph 1 of the Criminal Code, whereby the act of omission is also punishable (“[…] or who through malicious neglect of his duty, [person under protection] for them] worry, it is harmful to health [...] ").
  • Section 226 of the Criminal Code sanctions a serious consequence of bodily harm committed under Sections 223 and / or 224 of the Criminal Code. A serious consequence is z. B. the irreversible loss of a body part or organ. The act is punished with imprisonment from one to ten years.
  • Finally, Section 227 of the Criminal Code makes the most serious form of bodily harm a punishable offense: bodily harm resulting in death . If the perpetrator acts without intent to kill but with intent to cause bodily harm (i.e. not to kill his victim, although success occurs anyway), then neither murder nor manslaughter , but always bodily harm is relevant. The particularly severe consequence realized in the result of death goes beyond the particularly severe consequence of Section 226 of the Criminal Code and is therefore again subject to more severe sanctions. Section 227 (1) of the Criminal Code calls for a "prison sentence of no less than three years" .
  • Sections 224, 225, 226 and 227 of the Criminal Code replace Section 223 of the Criminal Code based on the doctrine of competition . A criminal liability for dangerous bodily harm and bodily harm is not possible.
  • There are also the regulations of § 228 StGB (bodily harm with consent) , § 229 StGB (negligent bodily harm) and § 231 StGB (participation in a brawl) .

All of these variations of the facts are not punishable without the realization of the basic facts of § 223 StGB. The criminal liability always presupposes the realization of the basic offense.

literature

  • Claus Roxin : Criminal Law. General part. (Part 1). 3. Edition. Beck Verlag, Munich 1997, ISBN 3-406-42507-0 , pp. 284-286.
  • Johannes Wessels, Werner Beulke: Criminal law. General part: The offense and its structure. 38th edition. Müller, Heidelberg 2008 ISBN 978-3-8114-9308-7