Inhibition threshold theory
The inhibition threshold theory is a criminal law theory to differentiate between intentional and negligent homicide. It is based on the subjective perception of the perpetrator at the time of the offense and is based on the idea that the perpetrator must overcome a particular inhibition threshold , the inhibition threshold to kill , in the case of homicides . The idea of the perpetrator is inferred from the objective circumstances of the crime.
If the perpetrator is to be punished for intentional homicide, he must have acted at least with contingent intent . If the court comes to the conclusion, due to the objective danger of the act, that the perpetrator must have considered the success of death to be possible, it would be conceivable to assume that he has come to terms with the death of the victim if he did the act despite what he considered a possibility recognized result of death. This would be a contingent resolution. On the other hand, if the perpetrator seriously trusts the lack of success, he is merely acting deliberately negligently.
In the case of homicides, the highest court rulings have long assumed that this conclusion about the danger of the act of "accepting" or accepting death is not easily possible. A person's life is such a valuable legal asset that a perpetrator has to overcome a higher, internal inhibition threshold in order to destroy a life. Therefore, the existence of an intent to kill should be judged very precisely after an overall view of all objective circumstances. The judge in the testimony and evidence assessment according to § 261 StPO always keep in mind the possibility that the perpetrator could misjudge the danger of death or at least have relied on an absence of the death that was recognized as possible. The inhibition threshold theory wants to prevent a schematic conclusion from the objective danger of an external action to the internal element of will.
Recently, German jurisprudence has increasingly moved away from the inhibition threshold theory and instead uses the model of the “absence of intent-critical factors” to determine the conditional intent.
literature
- Stefan Mühlbauer: The case law of the Federal Court of Justice on the killing inhibition threshold. Lit Verlag , 1999. ISBN 3-8258-4183-9
Individual evidence
- ^ Neumann, in: Kindhäuser, Neumann, Paeffgen (ed.): Nomos Commentary, Criminal Code. Vol. 2, 3rd edition 2010, § 212 Rn. 10, 14.
- ↑ BGHSt 7, 363 (369); BGHR StGB § 15 intent, conditional 1 and 6; Hans-Heinrich Jescheck , Thomas Weigend : Textbook of criminal law, general part, 5th edition 1996, p. 299 f .; Rudolf Rengier : Criminal Law, General Part, 4th Edition 2012, § 14 Rn. 26 ff .; Claus Roxin : Criminal Law, General Part, Vol. 1, 4th Edition 2006, § 12 Rn. 27.
- ↑ BGH NStZ 1983, 407.
- ↑ BGHSt 57, 183.
- ↑ BGH, judgment of March 22, 2012 - 4 StR 558/11 Rn. 33, 34.
- ↑ Michael Heghmanns : decision annotation on BGH, ruling v. March 22, 2012 - 4 StR 558/11, ZJS 2012, pp. 826-830.
- ↑ a b BGH, judgment of December 5, 2017 - 1 StR 416/17 .
- ↑ BGH, judgment of July 27, 2017 - 3 StR 172/17, Rn. 14th
