Mail pending
The Postpendenz (lat. Post : later, then; pendere : floating, hanging) is a legal concept from the German criminal law ; it denotes a finding in the criminal judgment .
The post pending determination is carried out if the perpetrator has violated a criminal law, but the facts cannot be fully clarified, namely in such a way that of two possible facts, the later one can be safely clarified and proven, but the earlier one is not certain present. However, if the criminality of the second issue depends precisely on the non-realization of the first issue, a post pending determination is made.
Example: The perpetrator could be shown to have been the later realized stolen property according to § 259 StGB , but it is not certain whether he was not also an accomplice of the theft previously committed according to § 242 StGB. However, stolen goods can only be committed on something illegally obtained by someone else , so that an accomplice in a theft cannot at the same time be a stealer in this regard.
Result: The perpetrator cannot be punished for theft, as there are no reliable findings. According to the principles of mail pending, the perpetrator is punished for stolen goods, although it cannot be ruled out that the element of the offense "illegally obtained by someone else" is not fulfilled at all.
In the opposite case, the prependency determination is carried out if the earlier facts are certain, the later ones only possibly exist.
The post pending determination is to be distinguished from the real election determination .
literature
- Fischer, StGB, 62nd edition 2015, § 1 Rn. 45.
Individual evidence
- ^ BGH, judgment of February 23, 1989 , Az. 4 StR 628/88, full text.
