Ingerenz

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Ingerenz ( Latin ingerere "interfere") is a criminal term coined and is based on the idea that the one who is his behavior has created the risk of a violation of a legal punished if he does not turn away the ensuing risk factual success. It is about the possibility of a guarantor or guarantor obligation from previous dangerous actions, which according to Section 13 of the Criminal Code can lead to criminal liability for a false omission offense .

Requirements for the guarantor from Ingerenz

Quality of the previous behavior

A lesser opinion in the literature assumes that the previous behavior only has to be risky and leads to criminal liability, even if it is permitted. However, because this view criminalizes mere risk-taking, it is largely rejected.

According to the prevailing opinion, the previous dangerous action must create an unauthorized risk or be unlawful in order to justify a guarantor out of ingenuity. For example, a restaurateur is liable to prosecution for the consequences of serving alcohol to people who are clearly drunk, Section 20 of the Restaurant Act (GastG). On the other hand, those who defend themselves admissibly in self-defense of an attack do not become the guarantor of the attacker.

Causal relationship

Ingerenz only leads to criminal liability if the unlawfully set danger actually materializes and the perpetrator could have prevented this with a probability bordering on certainty if he had acted. An inferior opinion allows the possibility of averting or reducing the risk to be sufficient if the theory of risk increase is applied accordingly . Because the successful offenses would be reinterpreted as pure endangerment offenses, the h. M. from this view.

example

On the way home at 3 a.m., A is attacked by B, who is armed with a knife and wants to take away his valuables. A succeeds in knocking down B with a stone lying around. He then leaves B, who is badly injured in the head, without looking for medical help. A little later, C comes by who recognizes the severity of the injury; however, he does not seek help either. B dies, but could have been saved by A or C with immediate help.

A violated B with his self-defense act , but this was challenged and triggered by B's unlawful attack. Charging A with the position of guarantor for B would contradict the meaning of the right of self-defense. A homicide committed by failure according to. Section 212 StGB in conjunction with Section 13 StGB is therefore ruled out.

C has already put no danger for B that could have been realized in B's death. A homicide committed by failure to do so is ruled out here as well.

However, the general right to assistance from B, which is reinforced by Section 323c (1) of the Criminal Code, also applies if the person concerned has caused the emergency himself. Both A and C could therefore have made themselves liable to prosecution for failure to provide assistance to the disadvantage of B.

Individual evidence

  1. ^ Fundamentally RG, judgment of October 20, 1893 - Rep. 2727/93, RGSt 24, 339, 340; BGH, judgment of January 22, 1953 - 4 StR 417/52, BGHSt 4, 20, 22; Fischer, StGB , 64th edition, § 13 Rn. 47 ff. And Ransiek, Handbuch Wirtschaftsstrafrecht , 5th, revised edition 2019
  2. ↑ BGH, decision of November 13, 1963 - 4 StR 267/63, BGHSt 19, 152, 154 and judgments of June 26, 1990 - 2 StR 549/89, BGHSt 37, 106, 115 as well as December 19, 1997 - 5 StR 569/96, BGHSt 43, 381, 397.
  3. ↑ BGH, judgment of July 6, 1990 - 2 StR 549/89
  4. ↑ BGH, judgment of 9 May 2017 - 1 StR 265/16 marginal no. 81 ff.
  5. ^ Doctor JA 1980, 712 ff .; Freund, JuS 1990, 213, 216; Herzberg JZ 1986, 986 ff .; Seelmann GA 1989, 241, 255.
  6. ↑ BGH, judgment of December 5, 1974 - GS 4 StR 529 // 74 = BGHSt 26, 35
  7. ^ BGH, judgment of July 29, 1970 - g. E. 2 StR 221/70
  8. ↑ Welzel, German Criminal Law § 28 AI 4; Dreher, StGB 31st edition before § 1 note DI 4; Schönke / Schröder, StGB, 15th edition. Paragraph 120 d; Mezger, Criminal Law 13th edition § 29 III 2 c; Eb. Schmidt, transcripts of Gr. Str-Comm. Vol. 2 p. 269; Henkel MSchrKrim. 1961, p. 183, Rudolphi, The problem of equality of false omission offenses, p. 180 ff.
  9. ↑ Jacob 29/39 ff .; Maiwald JuS 1981, 473, 482 f .; Otto NJW 1974, 528 ff.
  10. ↑ BGHSt 7, 211, 214; 37, 106, 126; BGH NStZ 1987, 505; Christian Kühl, General Part of Criminal Law , Section 18 No. 36.
  11. ↑ BGHSt 6, 147, 152.
  12. ↑ cf. Urs Kindhäuser : False omission offenses, University of Bonn, no year, p. 3 f.