Consumption (criminal law)
The German criminal law meant by consumption in the event that the fulfillment of a criminal offense not necessary (then specialty ) but regularly includes the realization of other facts. It is a form of legal unity .
For example, if a document is suppressed in accordance with Section 274 (1) No. 1 of the Criminal Code, there will usually also be damage to property pursuant to Section 303 (1) of the Criminal Code, which, however, would not be necessary for implementation (e.g. the withdrawal of a document is also possible without destroy them). However, since the damage to property is a regular accompanying offense, it does not claim any validity if a document is suppressed. This is how the case law of the BGH saw it for a long time .
The concept of consumption is, however, controversial and in more recent decisions the BGH has deviated from its previous view that these offenses carried out during the course of the offense are consumed in the course of sentencing. In contrast to the prevailing doctrine, he sees no consumption, for example in the case of burglary. The BGH justified this with fundamental, systematic considerations, among other things. Because of the tension that only exists between offenses, in the case of burglary, for example , it is not possible to displace the offenses of trespassing and damage to property that are regularly carried out in these cases by the mere punishment rule of Section 243 of the Criminal Code, so that the case law now regards the unity of the offense as given. There is also the possibility that accompanying offenses and the theft affect different legal beneficiaries (example: the perpetrator breaks into the warehouse of A, but steals the goods from B) or that there is a discrepancy in the values concerned, so that the worthless content is different. (Example case: as part of the break-in, the perpetrator enters a door, the value of which is € 1000. However, the stolen item is only worth € 100.)
literature
- Johannes Wessels : Criminal law general part: The crime and its structure . P. 305 ff ( Google Books ).
- Volker Krey , Uwe Hellmann : Criminal Law. Special part. Volume 2: Property offenses . P. 59 ff. ( Google Books ).
Individual evidence
- ↑ S. e.g. BGH , 2 StR 481/17 - decision of March 6, 2018
