Competition (criminal law in Germany)

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The doctrine of competition in German criminal law deals with the relationship between several violations of the law by an offender through his / her offense (s).

A fundamental distinction is made between unity (ideal competition) according to § 52 StGB and majority of offenses (real competition) according to § 53 StGB. In the case of the unit of offense, the same act or unit of action carries out several criminal offenses or one criminal offense several times; in the case of the majority of the offense, several criminal offenses or the same criminal offense are violated several times by several independent acts or units of action.

Unity and majority of acts

The purpose of the competition regulations, which can be found in Sections 52 to 55 of the Criminal Code, is to create a penalty appropriate to the respective guilt when several violations of the law occur and not just to add up the penalties for the individual offenses.

The Criminal Code prescribes two procedures with a unit of offense in accordance with Section 52 of the Criminal Code and a majority of offenses in accordance with Section 53 of the Criminal Code in order to develop an appropriate punishment from the threats of individual criminal offenses (principle of differentiation). Each unit of action is based on a unit of action and every majority of actions is based on a majority of actions. The reverse is not permissible because the implementation of several criminal offenses can already be eliminated at the level of legal competition.

In the case of an offense in which an act violates several laws that are not suppressed by specialty , subsidiarity or consumption , a penalty is recognized that is based on the most serious of the offenses committed (principle of inclusion or absorption). In the case of a majority of offenses in which several acts violate several laws that are not suppressed by way of the co-punished night offense or predicate offense, a total penalty is formed from the individual sentences provided for in the law . The severest penalty threat (operational penalty) is increased, whereby the total penalty must be less than the sum of the possible individual penalties (“penalty discount”).

The distinction between a single offense and a majority of offenses is based on the consideration that in the case of a majority offense the perpetrator is to be blamed for higher guilt (aggravation or asperation principle ). Subsequent formation of an overall sentence between two offenses is still possible even if the offender committed the later offense before the earlier offense was convicted. The reason for the subsequent total sentence formation is that in view of the later criminal offense, the conviction did not yet provide the perpetrator with a warning. The granting of a “penalty discount” is therefore justified by the formation of an overall penalty. The subsequent formation of an aggregate penalty is only possible if the sentence from the judgment for the previous offense has not yet been carried out.

In juvenile criminal law , on the other hand, a standard penalty is always formed ( Section 31 (1 ) JGG ).

The Austrian ( Section 28 of the Austrian Criminal Code ) and the Swiss (Art. 49 of the sStGB ) of the Criminal Code also follow the standard penalty principle .

Unit of action and majority of action

A unit of action is used when there is either an “action in the natural sense”, a “natural unit of action”, or a “legal unit of action”. Otherwise there is a majority.

Action in the natural sense

The same act of the perpetrator, which violates several criminal offenses or a criminal offense several times, is described as an act in the natural sense , if the perpetrator makes a natural decision to act and operates the underlying will. There must be a single act of will. This is the case if, for example, he shoots a person because he wants to kill him and, in addition to his death, as a transitory stage, bodily harm and damage to his clothing is realized.

Natural unity of action

However, an act can also consist of a legal unit of action. This is understood to mean the combination of several actions into a legal evaluation unit.

A natural unit of action can be formed by combining several non-overlapping acts against legal interests of different persons, if the behaviors are supported by a uniform will and there is a close spatial and temporal connection between them, so that they appear as a single occurrence and not a highly personal one Concern legal interests (life, limb, freedom). The focus is on the uniformity and togetherness of the overall event from the objective perspective of a third party . Such a case occurs regularly when a perpetrator breaks into several luxury vehicles in quick succession in order to steal the navigation devices from the respective interior. These thefts, which are in themselves independent, take place on the basis of a uniform perpetrator's will and at the same time and in the same place, so that there is a natural unity of action between them. The worthless content of the realization of the facts is ultimately only increased quantitatively.

Legal (legal) unit of action

In the case of a legal unit of action, several natural actions are linked to form an evaluation unit through the facts of the law.

A legal (legal) unit of action in the narrower sense is constructed in the case of multi-act offenses, permanent offenses and compound offenses. Multi-act offenses are characterized by the fact that executing acts are partly identical in the ratio of two or more offenses to one another. If someone wants to rob someone else, the violence exercised is relevant for the offense on the one hand; on the other hand, at the same time, but also for the bodily harm carried out (partial identity). In the next act of action, the coveted item is then taken away (theft component within the robbery offense). Permanent offenses are linked to the legal unit of action insofar as they provide the “injustice framework” for another criminal offense. Classic offenses are deprivation of liberty ( § 239 StGB ) and trespassing ( § 123 StGB). These offenses are uniform, with different interrelationships to another offense. Example: A goes into B's house without permission (trespassing) in order to attack and injure him when he comes home (bodily harm). In the same way, A could attack and injure B on his doorstep and then break into his house without authorization.

In 1994 the BGH broke with the variant of the so-called “ continuation context” discussed at that time within the framework of the legal unit of action . On May 3, 1994 , the Grand Senate for Criminal Matters of the Federal Court of Justice decided to abolish this legal structure. Until then, the continuation context had been constructed in such a way that several similar acts, each of which met all the requirements of a criminal offense and were directed against the same legal interest, were legally combined into one evaluation unit, if the specific acts were in the main features (according to time, place and type of inspection) were supported by an overall resolution. In the case of highly personal legal interests, it was also required that the act be directed against the same legal interests. Parts of the teaching as well as the jurisprudence demanded that the overall intent had to be formed by the end of the first partial act at the latest, which led to considerable problems of proof. There was enormous disagreement over the question of legal consequences, which led to judicial inconsistencies. Problems with this dogmatically insufficiently comprehensible legal figure presented in particular the following constellations: serial perpetrators, gangs, the principle ne bis in idem , quantities within the meaning of the BtMG , start of the statute of limitations, reciprocal relationship between domestic and foreign. The Grand Senate for Criminal Matters of the BGH set the following guiding principle at the time:

" The combination of several behaviors, each of which constitutes a criminal offense, to a continued action presupposes that this, which is to be measured in terms of the criminal offense, is indispensable in order to properly record the injustice and guilt that has been committed "

If there are several independent actions, one speaks of action majority.

Law competitions

Cases of legal competition (also so-called "bogus competition") are:

Legal competition in unit of action

specialty

The more specific law takes precedence over the more general one. Specialty means: An offense contains all the characteristics of another and, in addition, at least one additional characteristic that captures the facts from a more precise point of view, especially in the case of qualifications , privileges and special offenses . Compared to the basic offense, compound offenses are more specific than the offenses from which they are composed (e.g .: Section 244 (1) No. 3 StGB (burglary) is more specific than Section 242 StGB (simple theft); Section 249 StGB (robbery) is more specific than § 240 StGB (coercion) and § 242 StGB (theft)).

Subsidiarity

Subsidiary is an offense that is only used as an alternative if another offense does not apply. If the offense to be applied with priority applies, the subsidiary offense takes a back seat. A distinction is made between formal subsidiarity: e.g. B. § 246 Abs. 1, § 248b Abs. 1 StGB, here the alternative application is prescribed in the law, and material subsidiarity, where the priority results from the systematic of the offense. Attempt takes a back seat to perfection ; Participation behind perpetration ; Aid behind incitement , the jeopardizing offense behind the infringing offense , the abstract behind the concrete endangering offense .

Consumption

One offense is typically realized when another is committed and is compensated for by the punishment from the primary offense. For example , the unauthorized use of a vehicle ( § 248b StGB) consumes theft or misappropriation ( § 242 , § 246 StGB) of the gasoline and oil used. The burglary of a home in Section 244 (1) No. 3 StGB consumes trespassing in accordance with Section 123 of the Criminal Code.

Law competition in the case of a majority

In the case of a majority, individual offenses can be withdrawn as co-punished prior or post-offenses in the overall sentence formation:

  • co-punished predicate offense

An earlier act is not punishable if its unlawful content is also included in the later act (e.g. the theft of keys as a co-punished predicate offense in the case of vehicle theft; Section 30 (2) StGB in the case of attempted or completed crime)

  • co-punished night offense

The criminal liability of a night offense does not apply if it does not contain any unlawful content in relation to the previous offense. The prerequisites for this are that

  1. the subsequent act serves to secure, exploit or realize the advantage gained through the earlier act,
  2. the offense is directed against the same legal owner and the same legal asset and
  3. no new financial loss has occurred.

literature

Individual evidence

  1. ↑ Federal Court of Justice , judgment of August 3, 1962, file number: 4 StR 155/62 = BGHSt 18, 26.
  2. ↑ Detlev Sternberg-Lieben / Nikolaus Bosch in: Schönke / Schröder, Criminal Code, 30th edition 2019, Rn. 11 before §§ 52 ff.
  3. ↑ Similar: BGH, decision of November 5, 2014, file number: 5 StR 502/14 = BeckRS 2014, 22350, beck-online.
  4. ↑ Detlev Sternberg-Lieben / Nicolaus Bosch in: Schönke / Schröder, Criminal Code, 30th edition 2019, Rn. 12 before §§ 52 ff.
  5. ↑ BGH , decision v. May 3, 1994, Az .: BGH GSSt 2/93, GSSt 3/93 = NJW 1994, 1663 ff. = BGHSt 40, 138
  6. ↑ Detlev Sternberg-Lieben / Nikolaus Bosch in: Schönke / Schröder, Criminal Code, 30th edition 2019, Rn. 105 before §§ 52 ff.
  7. ↑ a b Detlev Sternberg-Lieben / Nikolaus Bosch in: Schönke / Schröder, Criminal Code, 30th edition 2019, Rn. 120 before §§ 52 ff.
  8. ↑ a b Detlev Sternberg-Lieben / Nikolaus Bosch in: Schönke / Schröder, Criminal Code, 30th edition 2019, Rn. 116 before §§ 52 ff.
  9. ^ Federal Court of Justice, judgment of December 8, 1959, file number: 1 StR 543/59 .
  10. ↑ Jürgen Schäfer in: Munich Commentary on the Criminal Code, 3rd edition 2017, § 123 Rn. 69.