Placing on the market (BtMG)
In Germany's narcotics law and criminal law, other marketing of narcotics is a criminal offense according to Section 29 Paragraph 1 Sentence 1 No. 1 Alt. 1 BtMG . In this context, placing on the market means any kind of opening up of the possibility of someone else actually gaining control of the substance and being able to use it at his own discretion, i.e. every causing another person to change control over the narcotics. The variant is subsidiary to other variants and serves as a catch-all against trading, selling, selling and providing opportunities.
Objective fact
A narcotic substance within the meaning of Section 1 BtMG must be present as the object of the crime . Section 29 (6) does not refer to the alternative of placing on the market for imitation narcotics.
According to controversial but prevailing opinion, the change of control does not require ownership . Marketing is both by doing and by omission possible. A guarantor position required for this can only exist, however, if the source of danger, i.e. the narcotic drug, is within one's own sphere of control, i.e. in one's own custody . The person in custody is the guarantor to prevent an impending change of custody. An example of this would be a doctor who enables a drug addict patient to take narcotics or signed blank narcotic prescriptions by leaving the consulting room. The dereliction of narcotics can also be placed on the market if this creates the risk that third parties will find the narcotics. This is possible, for example, in the situation that a drug dealer encountered by police officers throws the narcotics into a bush. However, this is ruled out if he throws the anesthetic into the toilet.
The new custodian does not need to have knowledge of or will to be custody. Conversely, the person placing the product on the market does not have to hand over his custody to a specific person. a prison inmate who for one incriminating statement to avenge in court on another prisoner and therefore him a note insinuates in drugs, bringing drugs on the market.
In the case of medical administration and prescriptions, the constellation of indirect perpetrators can also be considered. A doctor who prescribes a narcotic for purposes other than curative can put a narcotic on the market. Although he himself is not in custody of the narcotic drug, he uses the pharmacist as the person in custody as a (innocent or culpable) tool. It is sufficient that the pharmacist himself is eliminated as a deliberate perpetrator.
Subjective fact
From a subjective point of view , intent or negligence is required according to Section 29 (4) BtMG . In the case of dereliction in particular, dolus eventualis is sufficient .
literature
- Horn, “Placing on the market” as the central concept of ancillary criminal law, NJW 1977, 2329.
- Harald Hans Körner (Ed.): BtMG . 7th edition. CH Beck, Munich 2012, § 29 BtMG.
- Munich Commentary on the Criminal Code . 2nd Edition. CH Beck, Munich 2013, § 29 BtMG.
- Klaus Weber (Ed.): BtMG . 4th edition. CH Beck, Munich 2013, § 29 BtMG.
Individual evidence
- ↑ a b c Jörn Patzak : BtMG § 29 . In: Harald Hans Körner (Ed.): BtMG . 7th edition. CH Beck, Munich 2012, § 29 BtMG Rn. 3.
- ↑ Jörn Patzak : BtMG § 29 . In: Harald Hans Körner (Ed.): BtMG . 7th edition. CH Beck, Munich 2012, § 29 BtMG Rn. 1.
- ↑ Jörn Patzak : BtMG § 29 . In: Harald Hans Körner (Ed.): BtMG . 7th edition. CH Beck, Munich 2012, § 29 BtMG Rn. 2.
- ↑ a b Jörn Patzak : BtMG § 29 . In: Harald Hans Körner (Ed.): BtMG . 7th edition. CH Beck, Munich 2012, § 29 BtMG Rn. 4th
- ↑ a b Jörn Patzak : BtMG § 29 . In: Harald Hans Körner (Ed.): BtMG . 7th edition. CH Beck, Munich 2012, § 29 BtMG Rn. 7th
- ↑ a b Jörn Patzak : BtMG § 29 . In: Harald Hans Körner (Ed.): BtMG . 7th edition. CH Beck, Munich 2012, § 29 BtMG Rn. 8th.
- ↑ Jörn Patzak : BtMG § 29 . In: Harald Hans Körner (Ed.): BtMG . 7th edition. CH Beck, Munich 2012, § 29 BtMG Rn. 9.
- ↑ Jörn Patzak : BtMG § 29 . In: Harald Hans Körner (Ed.): BtMG . 7th edition. CH Beck, Munich 2012, § 29 BtMG Rn. 11.
