Qualification (law)
In law, qualification is the legal evaluation, the assessment of the specific case or situation, the methodological classification of the case according to legal norms (laws), for example in international private law, and the specification of the legal basis on which the evaluation is made. The term has a further meaning in the interpretation and application of laws. In this respect, one speaks of qualification facts , which in criminal law are also referred to as qualifications for short.
civil right
The term is particularly important in civil law in international private law. It describes the assignment of a situation to a collision rule.
Criminal law
In criminal law a distinction is made between the basic offense and the qualifying offense.
Basic facts and qualification facts
A criminal offense is the description of a certain behavior with general characteristics by the respective criminal law. This can consist of causing a certain success, but it does not have to be. A distinction is made between objective and subjective characteristics, which describe behavior, and these characteristics are assigned to the so-called objective and subjective facts.
In order to fulfill the offense, which justifies the criminal liability of a certain behavior, it is necessary that the behavior of the person acting corresponds to all elements of the offense (realizes the offense), the existence of which is mandatory under the respective criminal law. If only one of these features is missing, then the facts are not complete. The fulfillment of a fact is called completion. If necessary, criminal liability for attempt or preparation or an error can be taken into account.
If a criminal law provides for an offense which is partially identical to another criminal offense, i.e. contains it, and which differs from this offense in the presence of additional features, then the offense contained is called the basic offense and the offense containing this is called the qualifying offense . Compared to the criminal offense contained in it, these additional elements of the offense can themselves again establish, aggravate or mitigate punishment.
A qualifying offense can be attempted, because it is a criminal offense within the meaning of Section 22 of the Criminal Code , which can be implemented directly. However, the start of the experiment can only be assumed if the perpetrator imagines that the basic offense will be realized immediately.
Rules for determining sentences (especially examples of rules)
A distinction must be made between the rules for determining the penalties and the qualifications. These are not criminal offenses. The rules for determining punishment include the examples of rules , such as Section 243 (1), sentence 2, numbers 1 to 7 of the Criminal Code. It is not possible to attempt to implement a sentence assessment rule, in particular rule examples, as such (subject to the implementation of other criminal offenses), because a sentence assessment rule is not a criminal offense which can be implemented directly within the meaning of Section 22 StGB. The treatment of the constellations in which the perpetrator starts to realize a basic offense or completes it and hereby realizes a rule example or starts to realize it can be controversial.
construction
If it is to be checked whether a perpetrator has achieved a qualification, the question of the structure of the examination arises. The realization of the basic facts and the qualification facts can be examined separately or together. If these are examined together, then when examining the facts, one distinguishes between the objective and subjective elements of the facts and examines first the characteristics of the basic facts and then the realization of the qualifying facts.
Competitions
The realization of the qualification fact can lead to the fact that the associated basic fact is displaced by way of legal competition , for example by way of specialty .
Special constellations
Qualifications and severe consequence
Cases in which the law links a particular consequence of the offense with a more severe penalty can arise in connection with basic and qualifying facts. The basic offense describes an act. The qualification factor ties in with this and names the serious consequence. Regulated examples are bodily harm resulting in death (Sections 223, (possibly 224) 227 StGB), robbery resulting in death (Sections 249 (possibly 250), 251 StGB) or arson resulting in death (Sections 306, (possibly . 306a, 306b) 306c StGB). In this case, for criminal liability according to the qualifying offense that provides for a serious consequence, the serious consequence must have occurred, the specific danger of the basic offense has materialized in its occurrence and the perpetrator must have acted at least negligently, Section 18 StGB. The qualification can modify these requirements (as in the cases of §§ 251, 306c StGB).
The special case of homicides
It is disputed whether or not murder (Section 211 StGB) qualifies as manslaughter (Section 212 StGB). The prevailing doctrine affirms this, while the jurisprudence denies this and regards both offenses as independent. The background to the dispute is that the criminal offense of murder differs from the criminal offense of manslaughter in that it is linked to murder features. A murderer is someone who realizes one of the murder features mentioned in Section 211 (2) StGB. According to the wording of Section 212, Paragraph 1 of the Criminal Code, the manslaughter kills a person without being a murderer, i.e. does not realize the murder features mentioned in Section 211, Paragraph 2 of the Criminal Code.
There are crime-related and perpetrator-related characteristics of murder. The perpetrator-related characteristics of murder are special personal characteristics, circumstances or circumstances ( special personal characteristics ) within the meaning of Section 14 (1) of the Criminal Code. These can either have the effect of creating a criminal offense under Section 28 (1) of the Criminal Code or aggravate the punishment under Section 28 (2) of the StGB. The prevailing understanding in the literature is that murder is a qualifying offense, so that it regards the characteristics of murder as aggravating the penalty. On the other hand, the case law assumes that the two criminal offenses are independent, so that it comes to the conclusion that the characteristics of murder have a criminal liability.
This controversy is significant when it comes to the question of the criminal liability of the participant ( instigator or assistant ) in the homicides murder or manslaughter. The criminal liability of a participant is basically determined by the criminal liability of the perpetrator (for the instigator this follows from § 26 StGB, for the participant it follows from § 27 Paragraph 2 Clause 1 StGB, so-called accessory nature of participation). According to Section 28 (1) of the Criminal Code, nothing changes here, if one regards the characteristics of murder as the case law as constituting a criminal offense, the participant in a murder is punished for participating in the murder, the participant in a manslaughter for participating in the manslaughter. If, however, the participant in the murder lacks the respective murder characteristic, his sentence is to be mitigated according to Section 49 (1) StGB.
If, on the other hand, the prevailing doctrine is followed and the characteristics of murder are seen as aggravating the punishment, Section 28 (2) of the Criminal Code applies, which provides for a breach of accessoriety. As a result, the question of whether the participant in a homicide is to be punished for participating in murder or participation in manslaughter is no longer based on whether the main perpetrator has realized murder features, but on whether these are present in the participant himself.
Trial and Qualified Trial
Attempting to commit the offense that has been qualified as successful is punishable because the offense is a criminal offense. A successful offense can be attempted if the perpetrator starts directly with the realization of the offense, i.e. the basic offense and the qualifying offense. It is also possible to only attempt to qualify for success.
In the case of the successful attempt , the perpetrator tries to realize the basic offense (possibly also the qualification offense). However, only the qualifying fact is completed, not the basic fact, the realization of which remains in the stadium of the attempt.
Example: The perpetrator starts an armed robbery by pulling out a loaded pistol to threaten the victim so that he can take away his wallet. At that moment, because the perpetrator inadvertently failed to secure the weapon, a shot from the pistol is released and kills the victim. The perpetrator is horrified and flees without taking away the wallet. The basic offense (robbery, § 249 StGB) is not completed due to the lack of removal of the wallet. However, the victim is dead, which is why the qualification of robbery resulting in death , Section 251 of the Criminal Code (“death of another person”) has been implemented. This is an attempt that is qualified for success.
The criminal liability of the successful attempt is controversial. The controversy can be summarized as follows: According to a view that can be described as a minority opinion, a qualifying fact builds on the completion of a basic fact. Therefore, the criminal attempt at a qualification offense should not be possible if the basic offense remains incomplete. The objection to this view is that the unjust content of the realization of a qualification, which the legislature is making a criminal offense through a qualification, is not taken into account. The prevailing opinion therefore differentiates according to whether the injustice content of a qualification is linked to the act of the basic crime and its dangerousness for the victim, or to its completion, i.e. to its success. Only in the latter case should the successful attempt not be punishable.
There is a further dispute regarding the question of whether it is possible to withdraw from the successful attempt without punishment. The disagreement on this can be summarized as follows: One view rejects this because a greater injustice has been realized through the realization of the qualification than it could have ever been realized through the mere realization of the basic fact. The non-realization of the basic fact would no longer matter. The other view objects that the perpetrator no longer realizes the injustice, but returns to legality and the resignation takes account of this. In addition, the injustice that has been carried out can be adequately taken into account by the fact that the perpetrator may have carried out other criminal offenses.
Selected qualification facts
The following table lists significant pairs of basic offenses with their associated qualification offenses of the special part of the Criminal Code, which u. a. can be significant for legal training. The list is not exhaustive.
| Content of injustice / infringed legal interest | Basic fact | Qualification facts | |||
|---|---|---|---|---|---|
| Bodily harm / damage to health |
Section 223 of the Criminal Code Mayhem 1 objective fact Injury of physical abuse or damage to health 2. subjective fact Intent with regard to the objective fact |
§§ 223, 224 StGB dangerous bodily harm 1 objective factualization of the various modalities of Section 224, Paragraph 1, No. 1-5 2. subjective fact Intent in this regard |
§§ 223 (possibly § 244), 226 StGB serious bodily harm 1 objective fact serious consequence of § 226 para. 1 no. 1-3 2. subjective fact Intent in this regard |
Sections 223, (possibly 224), 227 Bodily harm resulting in death 1. Serious consequence of § 227 StGB (death of the victim) 2. Danger-specific realization context The death must have been caused by the physical injury. It is controversial whether it is sufficient that death occurs as a result of an act of injury (e.g. reaching back to strike, victim evades and falls and is fatally injured by the fall) or whether death must be based on the success of the injury. According to the probably hM, the act of injury is sufficient. According to the inferior opinion (doctrine of lethality), it is necessary that death must be based on bodily harm and thus the success of the injury. 3. Negligence regarding the serious consequence (§ 18 StGB) It is a case of a serious episode. |
|
| Theft (property) |
Section 242 of the Criminal Code theft Removal of another person's movable property with illegal intent to assign |
§§ 242, 244 StGB Theft with weapons; Gang theft; Home burglary Removal of another person's movable property with illegal intent to assign and Carry a weapon / tool with you or Gang member or Burglary |
Sections 242, 243 (or 242, 244) 244a StGB serious gang theft Removal of another person's movable property with illegal intent to assign and Gang member and Realization of one of the standard examples of § 243 StGB or Realization of § 244 As. 1 No. 1-3 StGB |
§§ 242, 249, 252 StGB predatory theft Removal of another person's movable property with illegal intent to assign and "Concerned in the act" and Use of force against a and Intention to keep ownership of the perpetrator By referring to Section 252 of the Criminal Code to Section 249 of the Criminal Code, it is possible to realize the qualifying facts of robbery §§ 242, 249, 252 StGB Sections 242, 249, 250 Paragraph 1, 252 StGB Sections 242, 249, 250 para. 2, 252 StGB Sections 242, 249, 251 252 StGB. For these facts see next line. |
|
| Robbery (property and free will) |
Section 249 of the Criminal Code robbery Removal component (= removal of a foreign movable object) Coercion component (Use of force or threats to life or limb) Finality between coercion and removal Acting with the intention of unlawful appropriation |
§§ 249, 250 StGB Abs. 1 Heavy robbery Removal component (= removal of a foreign movable object) Coercion component (Use of force or threats to life or limb) Finality between coercion and removal Acting with the intention of unlawful appropriation and Carrying a weapon or dangerous tool or a means to overcome a person's resistance or Danger of damage to the health of another person or Member of a gang |
Section 250 Paragraph 2 of the Criminal Code Heavy robbery Removal component (= removal of a foreign movable object) Coercion component (Use of force or threats to life or limb) Finality between coercion and removal Acting with the intention of unlawful appropriation and Using a gun or having a gun as a gang member or serious abuse or danger of death to another person |
Section 251 of the Criminal Code Robbery resulting in death Removal component (= removal of a foreign movable object) Coercion component (Use of force or threats to life or limb) Finality between coercion and removal Acting with unlawful intent to acquire possession (possibly serious robbery) and serious consequence of § 251 StGB (death of the victim) and Danger-specific context (death must be caused by the robbery, disputed whether it is also possible with a mere attempt at theft, according to hM yes) and Negligence with regard to the serious consequence (§ 18 StGB) |
|
| Extortion (wealth and free will) |
Section 253 StGB blackmail 1. Objective act of coercion Disposal of assets 2. subjective fact Intent illegal enrichment intent |
§§ 253, 255 StGB predatory extortion Basic fact 1. objective fact Coercive act Disposal of assets 2. subjective fact illegal enrichment intent 1. objective fact Qualified coercion (violence against a person or with the use of threats with current danger to life or limb) 2. subjective fact Intent Through the reference of § 255 StGB to § 249 StGB, the realization of the qualifying facts of the robbery is possible §§ 242, 249, 255 StGB Sections 242, 249, 250 Paragraph 1, 255 StGB Sections 242, 249, 250 Paragraph 2, 255 StGB Sections 242, 249, 251 255 StGB. For these facts see the top line. |
§§ 253, 250, 255 StGB severe predatory extortion Coercive act Disposal of assets illegal enrichment intent and Qualified coercion (violence against a person or with the use of threats with current danger to life or limb) and Offense of § 250 Abs. 1 StGB or § 250 Abs. 2 StGB |
Section 251 of the Criminal Code
Blackmail resulting in death Coercive act Disposal of assets illegal enrichment intent and Qualified coercion (violence against a person or with the use of threats with current danger to life or limb) and serious consequence of § 251 StGB (death of the victim) and Danger-specific context (death must be caused by the robbery, disputed whether it is also possible with a mere attempt at theft, according to hM yes) and Negligence with regard to the serious consequence (§ 18 StGB) |
|
Individual evidence
- ↑ M. Andrae: Qualification in international private and procedural law (general part), University of Potsdam , 2010
- ↑ Qualification in IPR. Retrieved December 28, 2019 .
- ↑ Thomas Fischer : Commentary on the Criminal Code . 66th edition. 2019, p. Section 12 marginal no. 8 .
- ↑ Holm Putzke : The criminal attempt. JuS 2009, pp. 985-990 (989).
- ↑ See with further evidence: Fischer, Criminal Code, 64th edition 2017, § 211, Rn. 88ff.
