Perpetrator (criminal law)
The perpetrator of a criminal offense is according to § 25 Abs. 1 1st alt. StGB , whoever commits the crime himself. In Section 25 (1) 2nd old StGB, indirect perpetration is regulated, in which the perpetrator uses another person as a tool to carry out the crime.
Establishing the perpetrator
In some cases, the distinction between perpetration and participation can be problematic . The case law primarily delimits according to subjective criteria. The perpetrator is someone who wants the act as his own, i.e. who acts with the will of the perpetrator ( animus auctoris ). A participant, on the other hand, refers to those who only want them as strangers ( animus socii ).
However, this led to the Federal Court of Justice abandoning the wording of the law. In the so-called Staschinski decision, he condemned an agent of the KGB who had killed several people in Germany, simply for being a complicity in a homicide, as he had claimed that he did not want the act to be his own . The opposite could not be proven.
After that, the jurisprudence took a turn and oriented itself more in the direction represented in the specialist literature. According to this, the perpetrator is whoever is in control. It is controversial whether a creative power is sufficient (e.g. the gang leader who only works in the background has) or whether a perpetrator can only be someone who has "authority to carry out the crime", i.e. who is on site when the crime is committed and the events are in their hands holds. Even if the case law often comes to the same result, it continues to pursue its subjective approach; for them, rulership is merely an indication that the person concerned was trading with animus auctoris .
Forms of perpetration
The law differentiates between three different forms of perpetration: direct, indirect and complicity. There is also the legally unregulated term of secondary offender.
Immediate perpetrator
According to § 25 para. 1, 1st alt. StGB is (direct) the perpetrator who commits the crime himself. This depends to a large extent on the implementation of the objective (e.g. removal of an item) as well as the subjective offense (e.g. intent to apologize) of a criminal norm.
Indirect perpetrator
Indirect perpetrator is according to § 25 Abs. 1, 2. Alt. StGB who commits a crime “through” someone else. You have to imagine him as the “superior man behind” who uses a “tool” in order to achieve a factually relevant success. The indirect perpetrator must also have the necessary perpetrator qualification (e.g. official status in the case of false authentication in the office according to § 348 StGB). The other must act as a tool for the man behind (“man in front”), because the perpetrator is exercised by the “man behind” by virtue of better knowledge. It is therefore regularly required that whoever acts as a tool has a “criminal liability deficit”. He must not be criminally accused of his behavior, be it because he acted unfounded (undolent / unintentional), lawful or innocent. This is the case, for example, if the indirect perpetrator asks a passer-by in good faith to take “his” suitcase out of the taxi, which in reality belongs to a third party. In this case, the tool acted unintentionally .
It is disputed whether there can also be a “perpetrator behind the perpetrator”, ie whether indirect perpetration is also possible if the tool acts fully responsibly. The Federal Court of Justice has so far only accepted this in two situations: in the case of organized power apparatuses that have significant organizational structures ( Mafia , the National Socialist and GDR regimes), and when the perpetrator acts in an avoidable error of prohibition (the cat king case ). In addition, it is argued in the literature that such a case also exists when the immediate perpetrator is deceived about his specific sense of action. An example of this would be an indirect break-in into someone else's apartment with the help of a locksmith called for emergency openings if the client could falsely convince the fitter that it was his own apartment.
In the literature, indirect perpetration in the form of the perpetrator behind the perpetrator is also discussed in cases in which the person in front is aware that he is committing a criminal injustice, but is deceived by the person behind about individual circumstances, for example about the value of a thing a property damage .
Legal consequences in the event of errors by the indirect perpetrator
With regard to the subjective offense, the indirect perpetrator must show intent and the awareness of the exercise of perpetration as well as the lack of responsibility of the person in front of him. At this constellation socialize occasionally mistaken questions to. If the man behind the man erroneously assumes that the man in front is at fault himself (error regarding the guilt of the tool), he can only be prosecuted for the act committed because of incitement ( Section 26 of the Criminal Code) because there was only incitement. The same applies if, exactly the other way around, the man behind is mistaken about the guilt of the tool, i.e. he incorrectly assumes that the man in front acted innocently, because objectively there is only incitement. The mistake about intent of the tool leads to attempted incitement, § 30 StGB. This case, too, is conceivable the other way around: The man behind mistakenly assumes that the tool is acting in good faith. Since the perpetrator is missing again if the person in front is actually bad faith, punishment for complete incitement ( Section 26 of the Criminal Code) is possible.
Accomplices
Accomplices according to § 25 Abs. 2 StGB are perpetrators who commit an act together. This presupposes that the perpetrators act on the basis of a joint crime plan. This requires a conscious (cognitive element) and intentional (voluntative element) cooperation in order to realize the plan. On the other hand, it is not sufficient that two perpetrators just happen to commit crimes at the same crime scene, possibly with the same object-related relationship.
Complicity does not, however, require that each of the perpetrators directly fulfills the objective offense of the criminal norm. Functional offense is sufficient if his contribution within the framework of the division of labor realization of the offense justifies an attribution of the total offense. All supportive or preparatory actions that enable the execution of the crime are attributable. According to the teachings of the rule of law , the perpetrator who otherwise appropriates the act systematically controls the event or helps to shape it in functional terms. Ultimately, what is required is the fulfillment of all the characteristics of the objective fact.
For the subjective offense, intent and intention with regard to the realized elements of the offense, these must be present in person for each accomplice or be realized by the will of attribution. Subjectively, an accomplice can only be attributed those crimes to which he has “fully engaged”. From this it follows that special subjective factual features are not mutually attributed, e.g. B. the crime-related intent in the event of theft, § 242 StGB or the perpetrator-related murder characteristics of groups 1 and 3 of § 211 StGB .
Successive complicity exists if the person only connects with the other perpetrator after the beginning of the execution act for the purpose of jointly executing the offense and continues to act with him with mutual consent.
Legal consequences of complicity
The perpetrators are liable within the framework of the joint crime plan. If a perpetrator goes beyond the common plan of action ( co- perpetrator excess ), the others are not complicit in this act. An error in obiecto , the confusion of the victim's identity, is irrelevant for the accomplice either.
Sideline
The StGB does not know the term “secondary offender” . Secondary offenders are offenders who attack the same legal interest independently of one another . A distinction must be made here between secondary offenders in the case of cumulative and alternative causality . Cumulative causality exists if the two perpetrators' contributions to the crime only led to success together, e.g. B. because administered poison alone would not have been fatal in the respective dosage . Alternative causality exists if the actual success would have occurred if one ignores the contribution of one perpetrator, but both contributions cannot be thought away without the concrete success failing to materialize. In this case (e.g. everyone gives the victim a lethal dose of poison), every perpetrator could plead that his actions have not become causal for the success, which would rule out his criminal liability. However, this is generally rejected.
The secondary perpetration thus only identifies special cases of perpetration that would not necessarily have required a special designation for the criminal assessment of behavior.
Administrative offense law
In regulatory offense law , one starts from the principle of unit offenders. Anyone who contributed to the cause of an administrative offense is viewed as a perpetrator (cf. § 14 OWiG ).
Traffic law
In traffic law , too , the legislature is based on the principle of unitary offender . Most of the crimes are committed negligently anyway and therefore a gradation of the perpetrator is ruled out here.
However, there are offenses in which participation was made a constituent element. Who as holder of a motor vehicle , a person without a driver's license can drive his vehicle, shall be punished for the Allow for driving without a license (see. § 21 Road Traffic Act )
literature
- Uwe Murmann: Indirect perpetration , legal worksheets (JA) 2008, 321
- Claus Roxin : Criminal Law. General part. (Volume 2). Beck Verlag, Munich 2003, ISBN 3-406-43868-7 , pp. 5–122.
- Claus Roxin: perpetrators and perpetrators , 7th edition, de Gruyter, Berlin 2000, ISBN 3-11-016464-7 (Pp.)
Web links
- Examination schemes for indirect perpetration and complicity
Individual evidence
- ↑ Urs Kindhäuser : Criminal Law General Part . 6th edition. Nomos Verlag , Baden-Baden 2013, ISBN 978-3-8329-6467-2 , p. 327 .
- ↑ See, for example, the overview in Munich Commentary on the StGB (2003), Joecks, notes 9 to 14 on § 25.
- ↑ Urs Kindhäuser : Criminal Law General Part . 6th edition. Nomos Verlag , Baden-Baden 2013, ISBN 978-3-8329-6467-2 , p. 337 .
- ↑ BGHSt 40, 218
- ↑ BGHSt 35, 347
- ^ Seier, JuS 1993, L75 ff.
- ↑ Criminal law: errors in indirect perpetration
- ↑ Wessels / Beulke : Criminal Law AT , § 242, Rn. 207, 31st edition 2001.
- ↑ perpetration and participation, §§ 25, 26, 27 StGB (PDF; 79 kB) Legal revision course inhibitor. S. 2. Archived from the original on June 17, 2012. Info: The archive link was automatically inserted and not yet checked. Please check the original and archive link according to the instructions and then remove this notice. Retrieved February 22, 2013.
- ^ Ingeborguppe : The common crime plan of accomplices , Bonn 2007 ( online )
