Doctrine of the negative elements

The doctrine of negative constituent elements is a theory in the general part of German criminal law , which summarizes that for every element of criminal law there is also the fact that there is no conceivable justification . The consequence is that the lack of any reason for justification is a negative feature of the offense, which is thus understood as a total offense of injustice .

The offense of manslaughter - "Whoever kills a person without being a murderer" ( § 212 I StGB) would therefore be read as: "Whoever kills a person without being a murderer and does not act in self-defense , not in one acts justifying emergency, is not subject to a conflict of duties , etc. "will be punished.

The consequence of applying this teaching would be a two-stage structure of the crime. In contrast, the prevailing opinion uses a three-stage structure of the crime and rejects the doctrine of the negative elements of the offense.

Significant are the consequences of the doctrine of negative criteria in the context of the problem of error : If the lack of grounds for justification is understood as part of the objective fact, in the case of an error in permissions - i.e. in the constellation that a perpetrator incorrectly assumes circumstances, they would be really suggests that would meet the requirements of a recognized justification - the regulation of § 16 StGB directly and not only, as according to the prevailing opinion, applicable analogously.