Putative emergency excess

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Putativnotwehre excess is a terminus technicus of German criminal law .

The putative emergency excess conceptually assumes that the perpetrator has an erroneous assumption of a self-defense situation , which the adjective “putative” indicates. In this supposed self-defense situation , the perpetrator defends himself out of confusion, fear or horror within the meaning of Section 33 StGB more intensively than would be required by self-defense (so-called excess of emergency defense ).

The criminal assessment of the putative emergency excess is controversial in jurisprudence . The prevailing opinion here refers to the rules of indirect error of prohibition ( § 17 StGB), whereby its avoidability must be checked. Since Section 33 StGB is also based on the idea of ​​an objective reduction in injustice and presupposes an actual attack, its application is rejected by a majority. Other views represent an analogous application of Section 33 StGB or Section 35 (2) StGB, which treats the question of guilt similarly to Section 17 StGB.

See also

Individual evidence

  1. ↑ Dreher / Tröndle , Criminal Code and ancillary laws , CH Beck, Munich 1995, § 32 Rnr. 27 (extensive emergency defense excess).
  2. ↑ Dreher / Tröndle, Criminal Code and ancillary laws , CH Beck, Munich 1995, § 33 no. 1–3 (intense emergency defensive excess).
  3. ^ Rengier: Criminal Law General Part . 10th edition. 2018, § 27 Rn. 30 .
  4. ↑ Wessels / Beulke: Criminal Law General Part . 42nd edition. 2012, para. 452 .