from Wikipedia, the free encyclopedia

A state of emergency is the state of current danger to legally protected interests, which can only be averted at the expense of foreign interests. According to Section 34 of the Criminal Code, “state of emergency” in Germany is a justification that, in contrast to the subordinate, apologetic state of emergency within the meaning of Section 35 of the Criminal Code and probably also the necessity of coercion, removes the illegality of an act . Within the dogmatics of the grounds of justification, priority must be given to self-defense .

A state of emergency in the constitutional sense is a dangerous situation that must be resolved by acting quickly.

State of emergency in the constitutional sense

If the situation in a certain area becomes unmanageable due to natural disasters , war, riot or the like, a state of emergency, including a state of emergency , can be declared. In some countries this has the consequence that the public authority can waive its obligation to the law and justice insofar as it considers it necessary to combat the state of emergency. In the democratic countries, the state of emergency usually means shortening legal protection against sovereign measures, as well as pushing back administrative or legislative procedures that take longer to complete. In contrast, the declaration of a fire-fighting state of emergency has no legal consequences.

The German state of emergency was after the Second World War, a condition of the West - Allies before the handover of full sovereignty to the Federal Republic. Originally, based on experience with Article 48 of the Weimar Constitution , the Basic Law did not contain any provisions for crisis situations such as an attack or a coup attempt. In 1955, the Defense Constitution made protection against military attack possible. The state of emergency in the Basic Law itself is in addition to Article 135a, Paragraph 1, No. 3 GG ( old liabilities of the Reich and the GDR ), Article 81 of the Basic Law ( legislative emergency ) , Article 91 of the Basic Law ( internal emergency ) and Article 115a– 115l GG ( emergency provisions in the event of a defense ) mentioned. For accidents and catastrophes, Art. 35 GG provides options for intervention.

State of emergency in the sense of civil law

The regulation of the grounds of justification in German law is not exhaustive.

Two different emergency situations are regulated under civil law: the defensive emergency according to § 228 BGB and the aggressive emergency according to § 904 BGB. Both are directed against the legal good of someone else's property . With regard to property, both are more specific than Section 34 of the Criminal Code and take precedence over this insofar as the encroachment on legal interests is only permissible under the conditions specified in civil law. However, when interpreting these norms in criminal law, the general criteria of the state of emergency under criminal law according to Section 34 of the Criminal Code must be used as a corrective. The admissibility of civil law justifications results from the principle of the unity of the legal order. What this allows cannot be punishable. The recourse to civil law is therefore not an “analogy to civil law in favor of the perpetrator”, which as such, however, would not contradict the prohibition of analogy in criminal law.

The occurrence of damage must be considered likely in the sense of the standards .

Defensive emergency

The impending danger that arises from the thing in Section 228 of the German Civil Code (BGB) must indicate a sufficient probability of damage. The emergency act itself must be supported and required by the will to avert the danger. Finally, when choosing the repellent, proportionality must always be taken into account. The defensive emergency act cannot constitute an unlawful (because it is justified) unlawful act ( § 823 BGB), but if the danger is to be blamed, it still obliges it to pay damages according to § 228 sentence 2 BGB. Anyone who exceeds the proportionality of the defense is ultimately acting unlawfully , so that the act is prohibited. The same applies to those who at least negligently mistakenly assume that they are in an emergency situation.

Aggressive Emergency (Aggressive Emergency)

According to § 904 BGB, a danger is averted by using a foreign object for it. The owner must tolerate this (sacrifice). For the aggressive state of emergency, however, there is not an imminent, but a present danger, as in Section 228 BGB (i.e. immediate remedial action is required). The effect on the thing must also be necessary and really aim to avert danger. The threatened damage must also be disproportionately large compared to the damage resulting from the impact on the owner. The requirement for the proportionality test is higher than in the defensive emergency. In contrast to the defensive emergency, the owner can in any case demand compensation for the damage he has suffered.

It is controversial in the context of § 904 BGB, from whom the injured party can request compensation. The legislature has not regulated this legislatively, but represents the h. M. the view that the injuring party is obliged to pay compensation himself.

Emergency in the criminal sense

Criminal law knows two emergencies. On the one hand the justifying, on the other hand the excusing emergency. Both are to be dogmatically separated from one another.

Justifying emergency

The examination of § 34 StGB takes place on the level of illegality in the tripartite structure of criminal offenses. According to the wording, it depends on the presence of a current danger. The presence of the danger is determined through objective review. The question of the “objective third party” as the observer's horizon aims to determine whether the latter would come to the conclusion that the danger would soon turn into damage at the decisive moment or would continue as a danger. The emergency act caused to defend itself must be the relatively mildest means and the danger must not be averted in any other way. A weighing of interests must take place between the goods to be impaired and those to be preserved. The legal system requires an appropriate weighing of interests.

Apologetic emergency

In contrast to the justifying state of emergency, the act of the offense remains unlawful in the case of an excusing state of emergency in accordance with Section 35 StGB. Only the personal reproach and the associated accusation of guilt are reduced to such an extent that punishment is waived because there is a reason for excuse .

The prerequisites are similar to those of a justifying emergency, because there must be an emergency. The necessary defensive action, however, is measured according to the extent to which it is reasonable to accept the danger. In fact, the apologetic emergency resides in the ultima ratio principle. The regulation shortens the list of legal interests worthy of protection to the three highest legal interests of the legal system: “Body”, “Life” and “Freedom”, whereby “Freedom” is understood as freedom of movement, not freedom of action. This must be considerably restricted in order to cover an emergency act. The group of people to be protected is also limited to the perpetrator, his relatives ( Section 11, Paragraph 1, No. 1 of the Criminal Code) as well as other people close to him. Legal interests such as property or honor are not protected by Section 35 of the Criminal Code, unlike in a justifying state of emergency. Otherwise, the emergency act must be necessary .

The perpetrator must not be exposed to any obligation to accept the danger that he is faced with in the context of an obligation to bear the risk. This obligation to tolerate the danger exists, for example, if he caused the danger himself or has a special legal relationship (e.g. police and fire brigade within the framework of their sovereign obligations or soldiers in accordance with § 6 WStG ).

Ultimately, a will to rescue must be given as a subjective element, which means that the perpetrator acts with knowledge of and on the basis of the emergency situation.

In day-to-day practice, the excusable state of emergency is by no means as important as the justifying state of emergency. Its scope is limited to a very narrow range of cases. However, it played a special role in the Nazi trials in the form of the so-called command emergency .


The necessity of coercion is also seen only as an excuse, not a justification. The victim's obligation to tolerate, which arises from the justification, speaks against a justification of the perpetrator who acts in an emergency. According to the prevailing view , this form of emergency is therefore assigned to the apologetic emergency.

In an emergency of coercion, the perpetrator bows to the overpowering threat of a third party to commit a crime in order to avert a danger from himself. A witness is z. B. compelled to perjure through threats of death.

Administrative offense law

Analogous to the justifying state of emergency under criminal law, this also applies to administrative offenses in accordance with Section 16 of the OWiG .

See also


Web links

Individual evidence

  1. Written request from MP Burkard Dregger (CDU) dated February 28, 2019 on the topic: Emergency emergency service at the Berlin fire brigade. Printed matter 18/18 072 .
  2. On the elements of the justifying emergency: Bernd Heinrich : Justifying emergency, § 34 StGB. (PDF) (No longer available online.) Archived from the original on May 17, 2016 ; accessed on February 17, 2019 (as of 2011).
  3. On the constituent elements of the excusing state of emergency: Bernd Heinrich: excuse reasons. (PDF) (No longer available online.) Archived from the original on May 17, 2016 ; accessed on February 17, 2019 (as of 2011).
  4. ↑ Emergency of coercion. In: Rechtslexikon.net. Retrieved February 17, 2019 .
  5. Benjamin Bünemann, Lars Hömpler: Necessity of coercion in the event of danger for non-personal legal interests . JURA 2010, pp. 184–187.