Attempt (StGB)

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In Germany's criminal law , the attempt denotes a stage of offense that lies between the preparation of the offense and the completion of the offense . According to Section 22 of the Criminal Code (StGB), there is an attempt if the offender immediately starts to realize the offense after having imagined the offense .

If the attempt leads to the completion of an offense, it is irrelevant for the criminal liability of the offender; it is subsidiary to completion . The attempt, on the other hand, has an independent meaning if the attempted criminal act does not reach completion. This happens when, contrary to the belief of the perpetrator, the objective fact of a crime is not fulfilled, for example because the factual success does not occur. This is the case, for example, when the perpetrator wants to kill his victim , but he only succeeds in injuring him. There is also only an attempt if the success occurs but is not causally brought about by the perpetrator or cannot be objectively attributed to him. There is a lack of causality, for example, when the victim of a homicide is shot by someone else before the poison brought on by the perpetrator begins to work.

The conditions under which the attempt to commit an act is punishable can be found in Section 23 of the Criminal Code. According to this, the attempt is always punishable in the case of a crime , and only punishable in the case of an offense if this is expressly ordered in the law. Pursuant to Section 12 (1) of the Criminal Code, all crimes that are at least threatened with a one-year imprisonment are considered crimes . These include manslaughter ( Section 212 StGB), robbery ( Section 249 StGB) and arson ( Section 306 StGB).

The range of penalties for the attempt is based on that of the offense attempted. The attempt is eligible because it is a willful and unlawful primary act . Anyone who consequently helps someone else to commit manslaughter is punishable as aiding and abetting ( Section 27 StGB), even if the main offense does not go beyond the experimental stage.

History of origin

Historical development of trial criminality

The current regulations on the experiment were incorporated into the Criminal Code with effect from January 1, 1975. It was supposed to regulate the criminal liability of the attempt, which until then had only been roughly regulated, more precisely than was previously the case. Previously, the attempt was regulated in Section 43 of the Criminal Code, which had been in the Reich Criminal Code (RStGB), the forerunner of the Criminal Code, since May 15, 1871 . According to this, anyone who made the decision to commit a crime to the outside world made a criminal offense for attempting. The forerunner of Section 43 of the RStGB was Section 31 of the Prussian Penal Code of 1851, which was based on Article 2 of the French Code pénal .

The GDR Criminal Code , which came into force on July 1, 1968, declared preparation and attempt to commit a criminal offense in Section 21 to be punishable if an offense expressly ordered it. As an attempt, the standard defined starting the realization of a constituent feature.

Purpose of the attempt

Why the law considers an attempted crime to be punishable is controversial in jurisprudence.

According to the objective theory, the criminal ground for the attempt lies in the objective endangerment of a legal interest through the attempt to commit a criminal offense. This view has not prevailed, since Section 23 (3) StGB also declares objectively harmless unsuitable attempts to be fundamentally punishable. Also, Section 22 of the Criminal Code does not focus on the objective situation, but on the perspective of the perpetrator as the decisive point of assessment.

In contrast, the subjective theory, which is represented in the case law in particular, sees the grounds for punishment for the attempt in the fact that the perpetrator, by attempting to commit a criminal offense, has acted against the law.

In some cases, objective and subjective elements are combined as grounds for punishment. Such an approach is followed, among other things, by the prevailing impression theory in legal theory. According to this, the criminal reason for the attempt lies in the fact that the perpetrator's behavior is hostile to the law, which can undermine public confidence in the legal system and legal peace.

Classification of the attempt in the stages of a crime

A crime goes through several stages before it is concluded.

At the beginning there is his preparation. Here, the perpetrator takes the measures that serve to later carry out his act. The preparation is usually unpunished. However, some criminal offenses make preparatory acts a criminal offense. For example, under Section 263a (3) of the Criminal Code, anyone who creates or distributes computer programs that are later used to commit computer fraud is liable to prosecution .

The experiment follows the preparation. When attempting, the perpetrator tries to meet the criteria of a legal offense. Attempting to commit an act is punishable under Section 23 (1) of the Criminal Code.

If all of the statutory criteria are met, the attempt is passed into the completion of the offense. This supersedes the criminal liability for attempt. Completion is followed by termination as soon as the perpetrator has completed his attack on legal interests. Upon termination pursuant starts § 78a clause 1 of the Criminal Code, the limitation period .

Facts of the attempt

The attempt presupposes subjectively a determined decision to act and objectively an immediate start to act. Due to the requirement of a decision to act, there is no negligent attempt. This is also derived from the phrase "... as he imagined ...". It is possible, however, to attempt a successful offense , as this is considered an intentional offense in accordance with Section 11 (2) StGB.

Decision to act

A decision to act is given when the offender has all the subjective characteristics of the offense required by the respective legal offense. According to Section 15 of the Criminal Code, every intentional offense presupposes that the offender acts at least with contingent intent with regard to the objective offense. This exists when the perpetrator has knowledge of his characteristics and approves the occurrence of the offense. The term prefix corresponds to that of the completed crime.

Certain offenses also contain additional subjective characteristics that must also be present for a decision to be made to act. For example, criminal liability for theft ( Section 242 of the Criminal Code) requires the perpetrator to act with the intention of appropriateness . A criminal liability for fraud ( § 263 StGB) presupposes the intention to obtain an illegal financial advantage.

There is no decision to commit the act if the perpetrator is only inclined to act, i.e. is considering the possibility of committing the act, but has not yet made a final decision. However, if the perpetrator links the commission of the act to the existence of certain circumstances, he acts with a determination to act, since he has unconditionally made the will to commit an act and will immediately implement it as soon as the condition occurs. The subjective test element is thus available. The assumption of a decision to act does not prevent the perpetrator from reserving the right to withdraw from the attempt.

Since the decision to act is judged from the perspective of the perpetrator, it is irrelevant for the criminal liability of the perpetrator whether the planned act can actually be carried out. Therefore, an attempt that is unsuitable from the outset is also punishable. For example , anyone who kills a scarecrow on the assumption that it is a human being is a criminal offense for attempted manslaughter ( Section 212 of the Criminal Code) . The criminal liability of the unsuitable attempt, the criminality of which is partly disputed in the teaching, is rooted in the subjective realization of the wrong by the perpetrator as well as the endangerment of the legal peace, which also emanates from such an attempt. However, if the perpetrator fails to realize through gross misunderstanding that his plan cannot realize an offense, the judging court can mitigate the punishment or waive the punishment in accordance with Section 23 (3) StGB .

There is no decision to act if the perpetrator erroneously assumes that his behavior complies with a criminal offense. This is merely an electoral offense, which is unpunished in the absence of a decision to commit an actually prohibited act. The superstitious attempt is also not punishable. Here the perpetrator imagines committing an offense by means of a means which, according to the state of the art, cannot possibly bring about the desired success. This concerns, for example, the will to kill by cursing .

Immediate attachment

A criminal liability for attempt furthermore presupposes that the perpetrator immediately starts to carry it out according to his / her conception of the act. In jurisprudence, it is controversial under which conditions a behavior represents an immediate start.

Before the new version of § 22 StGB

The previous regulation of Section 22 of the Criminal Code, the then Section 43 of the Criminal Code, designated the beginning of the act as an experimental act. In order to determine this point in time, different approaches emerged in law. These were based on the different interpretations of the grounds for punishment for the attempt, so that initially purely objective and purely subjective approaches were opposed.

Reinhard Frank

According to the formal-objective theory, there was immediate action as soon as the perpetrator began to implement a constituent element. This theory is now considered obsolete, as it deals with experimental criminality more restrictively than meets the needs of criminal policy. In addition, the wording of Section 22 of the Criminal Code is formulated more openly and also includes actions that precede the realization of the elements of the offense. According to the material-objective theory developed by Reinhard Frank , on the other hand, there was immediate action if the perpetrator endangered the object of the crime through behavior that was naturally related to an act according to the facts. This starting point should facilitate an evaluative assessment of what happened in order to find results that are appropriate to the individual case. However, the material-objective view was countered by the fact that it relied on an imprecise criterion and therefore could not allow a sufficiently precise demarcation between preparation and experiment. In addition, according to this view, it was not possible to start immediately with the unsuitable attempt, which is a contradiction to the legislature's recognition of the criminal liability of the unsuitable attempt.

The objective theories were opposed to the subjective theory, which was represented especially in the case law. According to this, the perpetrator immediately started to act when he crossed the threshold to “Now it's going to start”. This view was countered by the fact that simply relying on the will of the perpetrator would lead to random results, which made possible a significant extension of the experimental criminality. The delimitation criterion for this view is also extremely vague.

In order to avoid the weaknesses of the objective and subjective theories, both approaches were finally combined to form an objective-subjective doctrine, which developed into the predominant view.

According to the new version of § 22 StGB

With the new version of Section 22 of the Criminal Code, the legislature joined the objective-subjective teaching. For the assessment of the immediate approach, he focuses on both the perception of the perpetrator and the approach to the realization of the facts. As a result, an experimental act is characterized according to Section 22 StGB in that it directly serves to bring about the success of the offense according to the will of the perpetrator.

After the revision of Section 22 of the Criminal Code, the dispute about the correct approach to defining immediate attachment was decided, but the details of the definition of immediate attachment are still unclear. This is due to the fact that the wording used by the law is vague. In order to concretise the vague concept of immediacy, numerous different interpretative approaches emerged in jurisprudence, of which the theory of spheres, the theory of danger and the theory of intervening acts are among the more widespread.

Interpretative approaches

The theory of spheres regards the intrusion of the perpetrator into the sphere of the victim as an immediate start to the act, if there is a close temporal connection between intrusion and achievement of success.

According to the hazard theory, there is an attempt if, in his view, the perpetrator is actually endangering a legal asset.

According to the intermediate act theory (also partial act theory) there is an immediate start if the perpetrator assumes that there is no relevant intermediate step between his act and the realization of the legal facts. This teaching argues that it is applicable to all types of crime and comes close to the legislative intention.

Assessment in legal practice

In legal practice, these theories are often combined with one another in order to enable the start of the experiment to be determined as precisely as possible. Against this background, the following applies: As a rule, there is an immediate start if the perpetrator realizes a characteristic of a statutory offense. For example, the killing begins at the latest when the perpetrator injures the victim.

In practice, the assessment of immediate action is more problematic if the perpetrator restricts himself to performing an act that is close to the factual situation and precedes the realization of an element of the offense. Such an act indicates that the perpetrator has not yet started to realize an element of the offense. This can also be the start of the experiment.

A typical example of an act close to the facts are the so-called "doorbell cases", in which the perpetrator rings the doorbell of his victim in order to rob him: In such a case, if he wants to knock immediately after opening the door, from his point of view, this is not essential Intermediate acts are more necessary, which is why, according to the prevailing opinion, he immediately starts attempting the robbery. However, if the perpetrator wants to get to the victim's apartment first in order to commit the robbery there later, important interim acts are still required from his point of view. Therefore, ringing the doorbell in this case is only an unpunished preparatory act.

Another example of an act that is close to the factual situation is lying in wait. If the perpetrator hides in a bush, for example, in order to ambush his victim, this can already be an immediate start to the act if the perpetrator assumes, based on evidence, that his victim will appear soon and can be endangered without significant intermediate acts.

Finally, there are difficulties in assessing the immediate approach to traps and distance crimes. These case constellations are characterized by the fact that the perpetrator undertakes an action that is only intended to endanger the victim much later. This is the case, for example, when the perpetrator places a bomb in his victim's vehicle in order to kill him. At the latest, this represents immediate action when the victim is actually in danger because he / she enters the effective area of ​​the trap. According to the prevailing opinion, however, an immediate start can already be assumed if the perpetrator gives up the event in such a way that he cannot control the further causal process.

special cases

In connection with the immediate approach, several special case constellations are discussed in law.

Standard examples and qualifications

If the perpetrator wants to commit a qualified offense, the assessment of the immediate attack depends solely on the basic offense. For example, entering someone else's home does not lead to theft of home burglary ( Section 244 (1) no.3 StGB). It would be necessary for the perpetrator to start the act of removal immediately. The same applies to the preparation for the implementation of a rule example .

Indirect perpetration

It is controversial in jurisprudence under which conditions a direct approach in the case of indirect perpetration can be assumed. Indirect offender is, according to Section 25, Paragraph 1, Alternative 2 StGB, whoever commits an act by someone else. As a rule, this applies if the perpetrator takes advantage of a circumstance in his victim that excludes his or her criminal liability; such as lack of intent or guilt . The assessment of the immediate approach in this case constellation raises difficulties, since at least two people are involved in an act in indirect perpetration, the investigator and the indirect perpetrator.

According to one view that is referred to as the overall solution, the indirect perpetrator starts the offense immediately if the perpetrator starts immediately. She argues that the accomplice must not be more strictly liable than an instigator who, because of the accessory nature of the participation, depends on the immediate action of the person in front.

According to the individual solution, the indirect perpetrator, on the other hand, starts the act by influencing the criminal investigator. This view argues that at this stage the threshold for attempting incitement is exceeded.

Jurisprudence and prevailing doctrine modify the individual solution: They assume immediate action if the indirect perpetrator assumes that he has done everything necessary to realize a legal offense. This view argues that it implements the criteria of § 22 StGB more precisely than the other views. This is often followed up when the perpetrator has persuaded the perpetrator to commit an act, since, from his point of view, often no essential intermediate steps are necessary to endanger the victim. However, if, in his opinion, there are still significant steps between the action and the endangerment, immediate action only takes place when the victim is endangered by the crime investigator.

Complicity

If several people act as accomplices ( Section 25 (2) StGB), according to the prevailing overall solution, all of them will be dealt with immediately if an accomplice exceeds the threshold at the start of the experiment. According to Section 25 (2) of the Criminal Code, the contribution made by an offender is assigned to the accomplices as a separate contribution.

In jurisprudence, the possibility of imputation is controversial if an accomplice starts directly to act. This can happen, for example, when two people agree to commit the offense, one of whom is an undercover investigator who only appears to commit the offense. According to a view that is also represented in the case law, according to the principles of the unsuitable attempt, an attribution is also possible. The opposite view denies the possibility of attribution, since there is no necessary common plan of action.

Fail

According to the prevailing view in jurisprudence, an attempt to commit an inauthentic offense of omission occurs immediately if the perpetrator believes that his omission creates a new risk situation or exacerbates an existing one. According to a counter-opinion, the perpetrator starts immediately by letting go of the first opportunity to save the victim. Another view affirms immediate action only if the perpetrator does not seize the last resort.

Legal consequences

The scope of the attempt depends on the offense attempted. According to Section 23 (2) of the Criminal Code, however, the court may punish the attempt more leniently under Section 49 (1) of the Criminal Code than the completed act (Switzerland: Art. 22 (1) of the Criminal Code ). Whether or not the mitigation option is used is judged on a case-by-case basis according to the circumstances of the crime, such as the dangerousness of the attempt and its proximity to completion.

According to Section 23 (3) of the Criminal Code, the penalty for an attempt can be mitigated or the penalty waived if the perpetrator, due to gross misunderstanding, fails to recognize that the attempt he has planned cannot lead to completion. Whoever fails to recognize generally known and obvious causal relationships acts grossly inappropriately. The regulation of Section 23 (3) of the Criminal Code is based on the offender not behaving in a dangerous manner.

resignation

The experimental perpetrator can exempt himself from his experimental criminal liability by withdrawing from the act. This is a personal reason for suspension of the sentence, so it only applies to the person involved in whose person the conditions for resignation are met. The resignation of an offender, for example, does not conflict with the criminal liability of an instigator or assistant .

Jurisprudence sees several functions in the possibility of resignation: On the one hand, it should give the perpetrator a way back into the legal system. On the other hand, it should be rewarded that the perpetrator does not complete his act (merit theory). Finally, by preventing the completion of the crime, the criminal policy need for punishment disappears.

The basics of the resignation are regulated in § 24 StGB. In detail, the complex provision raises numerous legal questions. The general rule is that withdrawal is only possible as long as the act has not failed. Resignation is also fundamentally excluded if success occurs despite all efforts to resign. If the victim dies in the hospital after all, the perpetrator is then punishable for a completed homicide, provided that this success can also be attributed to him. The requirements for withdrawal depend largely on whether the perpetrator acts alone ( Section 24 (1) of the Criminal Code) or with several people (then Section 24 (2) of the Criminal Code). Ultimately, a necessary prerequisite for all alternatives to resignation under Section 24 of the Criminal Code is that the perpetrator acts voluntarily.

Exclusion of resignation due to failure of the act

Resignation is excluded from the outset if the perpetrator's attempt fails. The failure is characterized by the fact that the perpetrator assumes that he will at least no longer be able to bring about success without a temporal caesura, i.e. that his plan of action has failed.

If the perpetrator only has one opportunity to complete the act, the attempt is deemed to have failed if this opportunity does not lead to success.

The assessment is more difficult if the offender has several opportunities to realize the facts. This is the case, for example, if the perpetrator has a weapon with several cartridges so that he can try several times to shoot his victim. It is controversial in jurisprudence how the concept of the act in Section 24 (1) sentence 1 StGB is to be interpreted. After Einzelaktstheorie thinks indeed an act that can bring about the success from the perspective of the perpetrator. According to this, in the example case, there would be a failed attempt at killing if the perpetrator does not succeed in killing his victim with the first shot. The prevailing doctrine of general observation, on the other hand, regards the entire act as a single act. According to this, in the example case, a failure would only occur if the perpetrator fired all the cartridges in vain and assumed that he would not be able to kill his victim in any other way as part of the crime.

The failure is to be distinguished from the unsuitable attempt, which, in contrast to the failure, is characterized by the fact that the success originally could not have occurred in the first place because of the unsuitability of the object, the means or the subject. Withdrawal from an unrecognized unsuitable attempt is still possible, but subject to the additional requirements of Section 24 (1) sentence 2 of the Criminal Code. If the attempt is recognized to be unsuitable, resignation is excluded, since no subjective effort to hypothetically complete the act is possible.

It is controversial in jurisprudence whether a resignation is an option if the perpetrator only refrains from the act because he has achieved a non-factual goal through his previous actions. This is the case, for example, if the perpetrator initially injures his victim with a knife in order to intimidate him, but refrains from further attacks because he assumes that the victim is sufficiently intimidated. According to the opinion of the case law and the prevailing doctrine, the non-factual achievement of goals does not prevent a resignation: For the resignation from the homicide, only the will with regard to the killing is decisive, because the legal offense is based solely on this. According to a contradicting view, a resignation is excluded, since the offender does not provide an honorable service by abandoning the victim.

Requirements for the behavior of the withdrawing person

Resignation of the single perpetrator, § 24 paragraph 1 StGB

According to Section 24, Paragraph 1, Clause 1 of the Criminal Code, the prerequisites for withdrawal are primarily based on whether the attempt is unfinished or ended. This is largely judged on the perception of the perpetrator at the time of the last act, the retirement horizon.

The attempt is unfinished if the perpetrator has not yet done everything necessary to bring the offense to fruition. To withdraw from the contract, it is sufficient in this case to voluntarily give up the further execution of the crime, Section 24 Paragraph 1 Sentence 1 Alternative 1 StGB. A classic example are remorse that overwhelms the perpetrator when carrying out the crime and induces him to give up his plan.

On the other hand, the attempt is ended when the perpetrator has, according to his imagination, done everything necessary to realize the facts. For an effective resignation, the mere abandonment of the further execution of the act is of course no longer sufficient. Rather, the perpetrator must prevent the success of the offense from occurring, Section 24 Paragraph 1 Sentence 1 Alternative StGB. This is done by starting a causal process that leads to the non-completion of the act. According to one of the legal doctrines' views, the perpetrator must also make the best possible effort to avoid completion, since impunity is only then appropriate.

According to Section 24 (1) sentence 2 of the Criminal Code, exemption from punishment through resignation is also possible if the behavior of the offender does not lead to the failure to complete the offense. However, he must seriously endeavor to not complete it. According to the prevailing opinion, the criteria of seriousness increase the demands on the behavior of the perpetrator compared to Section 24 (1) sentence 1 alternative 2 StGB; the perpetrator must do everything necessary from his point of view to prevent completion. This tightening is based on the fact that the perpetrator does not objectively reduce the risk situation, so that he must work for himself to be exempt from punishment through a particularly cheap endeavor.

Withdrawal if more than one party is involved

Section 24 (2) of the Criminal Code regulates the withdrawal in the case of several perpetrators. Here the person willing to resign must prevent the deed from succeeding. This tightening compared to Section 24 (1) of the Criminal Code is based on the fact that the risk to the threatened legal interest is greater if several parties are involved, which is why the mere non-continuation of the act by one party is generally not sufficient to obtain impunity.

It is essential that the withdrawal only applies to those involved who meet the requirements in person. In contrast to Section 24 Paragraph 1 StGB, Section 24 Paragraph 2 StGB does not differentiate between unfinished and finished attempts.

Resignation from the fraudulent omission offense

Withdrawal from the attempt to commit a fraudulent omission offense presents particular problems.

One problem lies, for example, in the question of whether there can be an unfinished attempt at a spurious omission offense at all, because the actual success occurs regularly without any further action on the part of the offender, so that active intervention is required to withdraw. However, a view still distinguishes between a completed and an unfinished attempt. The focus is on whether success, according to the perpetrator, can be averted by the originally required action, then the attempt would be unfinished ( Section 24 (1) sentence 1 alternative 1 StGB), or additional measures are required, which is why the attempt is considered to be should be regarded as ended ( Section 24 Paragraph 1 Sentence 1 Alt. 2 StGB).

Voluntariness

After all, resignation is only possible if the offender's resignation behavior is voluntary. The prevailing opinion is that the perpetrator acts out of autonomous motives. This is the case when the perpetrator is master of his decisions with regard to the resignation. This is the case, for example, if the perpetrator ceases to act out of remorse or out of fear of punishment. In contrast, there is no autonomous action, for example, if the perpetrator gives up the act because he fears that he will otherwise be discovered by a third party. Furthermore, according to the case law, the motivation of the perpetrator is irrelevant. According to a counter-opinion, the perpetrator must pursue a motive that is consistent with the purposes of Section 24 of the Criminal Code, which in addition to the protection of victims, in particular include the return to legality.

Active repentance

If a resignation is ruled out because the act has been completed, impunity or at least mitigation through active repentance is possible for certain offenses . Active repentance is particularly provided for those offenses where the margin between attempt and completion is comparatively small. This applies to corporate crimes, for example .

literature

  • Adam Ahmed: Resigning from attempted fraudulent omission. Publishing house Dr. Kovac, Hamburg 2007, ISBN 978-3-8300-2958-8 .
  • Thomas Maier: The objectification of the injustice of attempt. Duncker & Humblot publishing house, Berlin 2005, ISBN 3-428-11274-1 .
  • Holm Putzke: The criminal attempt. In: Juristische Schulung (JuS) 2009, 1st part: pp. 894–898 (volume 10), 2nd part: pp. 985–990 (volume 11), 3rd part: pp. 1083–1087 (volume 12) .
  • Claus Roxin : Criminal Law. General part. (Volume 2). Beck Verlag, Munich 2003, ISBN 3-406-43868-7 , pp. 339-473; 474-624.
  • Klaus Ulsenheimer : Basic questions about withdrawing from the experiment in theory and practice. de Gruyter Verlag, Berlin and New York 1976, ISBN 978-3-11-006509-1 .

Web links

Individual evidence

  1. ^ Thomas Rönnau: Basic knowledge - criminal law: beginning of the experiment . In: Legal Training 2013, p. 879.
  2. ↑ Hans Kudlich, Jan Schuhr: § 22 , Rn. 6. In: Helmut Satzger, Wilhelm Schluckebier, Gunter Widmaier (eds.): Criminal Code: Commentary . 3. Edition. Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28685-7 .
  3. ↑ a b Klaus Hoffmann-Holland: § 22 , Rn. 22-27. In: Bernd von Heintschel-Heinegg (Ed.): Munich Commentary on the Criminal Code . 3. Edition. tape 1 : §§ 1–37 StGB. CH Beck, Munich 2017, ISBN 978-3-406-68551-4 .
  4. ^ Robert von Hippel: German Criminal Law Volume 2 . Springer-Verlag, Luxemburg 1930, § 30.
  5. ↑ Günter Spendel: Critique of the subjective experimental theory . In: Neue Juristische Wochenschrift 1965, p. 1881 (1888).
  6. ↑ Klaus Hoffmann-Holland: § 22 , Rn. 17. In: Bernd von Heintschel-Heinegg (Ed.): Munich Commentary on the Criminal Code . 3. Edition. tape 1 : §§ 1–37 StGB. CH Beck, Munich 2017, ISBN 978-3-406-68551-4 .
  7. ↑ Albin Eser, Nikolaus Bosch: Before §§ 22-24 , Rn. 20. In: Adolf Schönke, Horst Schröder, Albin Eser (ed.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  8. ↑ BGHSt 11, 268 .
  9. ↑ BGHSt 15, 210 .
  10. ↑ Heiner Alwart: Punishable trying: An analysis of the concept of punishable and the structure of the attempted offense . Duncker & Humblot, Berlin 1982, ISBN 978-3-428-05025-3 , pp. 158 .
  11. ^ Walter Gropp: Criminal Law General Part . 4th edition. Springer, Berlin 2015, ISBN 3-642-38125-1 , § 9, Rn. 88-89.
  12. ↑ Albin Eser, Nikolaus Bosch: Before § 22 , Rn. 22. In: Adolf Schönke, Horst Schröder, Albin Eser (ed.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  13. ↑ Reinhard Maurach, Heinz Zipf, Karl Heinz Gössel: Criminal Law General Part Volume 2: Forms of the crime and legal consequences of the act . 8th edition. CF Müller, Heidelberg 2014, ISBN 978-3-8114-5032-5 , § 40, Rn. 41.
  14. ↑ a b Kristian Kühl: The criminal act in its temporal development . In: Legal worksheets 2014, p. 907.
  15. ↑ BGHSt 40, 208 (210).
  16. ↑ Kristian Kühl: The crime in its temporal development . In: Juristische Arbeitsblätter 2014, p. 907 (908).
  17. ↑ List of other preliminary offenses by Hans Kudlich, Jan Schuhr: § 22 , marginal no. 2. In: Helmut Satzger, Wilhelm Schluckebier, Gunter Widmaier (eds.): Criminal Code: Commentary . 3. Edition. Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28685-7 .
  18. ↑ Hans Kudlich, Jan Schuhr: § 22 , Rn. 4. In: Helmut Satzger, Wilhelm Schluckebier, Gunter Widmaier (eds.): Criminal Code: Commentary . 3. Edition. Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28685-7 .
  19. ↑ Klaus Hoffmann-Holland: § 22 , Rn. 28-30. In: Bernd von Heintschel-Heinegg (Ed.): Munich Commentary on the Criminal Code . 3. Edition. tape 1 : §§ 1–37 StGB. CH Beck, Munich 2017, ISBN 978-3-406-68551-4 .
  20. ↑ Kristian Kühl: The crime in its temporal development . In: Juristische Arbeitsblätter 2014, p. 907 (909).
  21. ↑ Oliver Jung: The idea of ​​the act in a criminal attempt . In: Legal worksheets 2006, p. 228.
  22. ↑ Klaus Hoffmann-Holland: § 22 , Rn. 31. In: Bernd von Heintschel-Heinegg (Ed.): Munich Commentary on the Criminal Code . 3. Edition. tape 1 : §§ 1–37 StGB. CH Beck, Munich 2017, ISBN 978-3-406-68551-4 .
  23. ↑ Hans Kudlich, Jan Schuhr: § 22 , Rn. 11. In: Helmut Satzger, Wilhelm Schluckebier, Gunter Widmaier (ed.): Criminal Code: Commentary . 3. Edition. Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28685-7 .
  24. ↑ Hans Kudlich, Jan Schuhr: § 22 , Rn. 16. In: Helmut Satzger, Wilhelm Schluckebier, Gunter Widmaier (eds.): Criminal Code: Commentary . 3. Edition. Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28685-7 .
  25. ↑ Kristian Kühl: Criminal Law General Part . 7th edition. Vahlen, Munich 2012, ISBN 978-3-8006-4494-0 , § 5, Rn. 43.
  26. ↑ BGHSt 22, 330 (332).
  27. ^ Walter Gropp: Criminal Law General Part . 4th edition. Springer, Berlin 2015, ISBN 3-642-38125-1 , § 15, Rn. 24-25.
  28. ↑ BGHSt 21, 14 (17).
  29. ^ Wessels / Beulke, Criminal Law AT, 38th edition, Heidelberg 2008, Rn. 598.
  30. ↑ René Bloy: Injustice and punishability of the grossly incomprehensible attempt . In: Journal for the entire criminal law science 2001, p. 76.
  31. ^ Walter Gropp: Criminal Law General Part . 4th edition. Springer, Berlin 2015, ISBN 3-642-38125-1 , § 15, Rn. 28.
  32. ↑ Wilfried Bottke: Unsuitable attempt and voluntary resignation . In: Claus Roxin, Gunter Widmaier (ed.): 50 years of the Federal Court of Justice . tape 4 : Criminal Law, Criminal Procedure Law. CH Beck, Munich 2000, ISBN 978-3-406-46600-7 , p. 135 .
  33. ^ Rainer Zaczyk: § 22 , Rn. 37. In: Urs Kindhäuser, Ulfrid Neumann, Hans-Ullrich Paeffgen (ed.): Criminal Code . 5th edition. Nomos, Baden-Baden 2017, ISBN 978-3-8487-3106-0 .
  34. ↑ Hans Kudlich, Jan Schuhr: § 22 , Rn. 22. In: Helmut Satzger, Wilhelm Schluckebier, Gunter Widmaier (eds.): Criminal Code: Commentary . 3. Edition. Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28685-7 .
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  36. ↑ BGHSt 13, 235 .
  37. ↑ Brian Valerius: Unsuitable attempt and electoral crime . In: Legal worksheets 2010, p. 113.
  38. ↑ Roland Schmitz: The demarcation of criminal attempt and delict . In: Jura 2003, p. 593.
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  41. ↑ Kristian Kühl: Criminal Law General Part . 7th edition. Vahlen, Munich 2012, ISBN 978-3-8006-4494-0 , § 15, Rn. 38.
  42. ↑ RGSt 70, 151 .
  43. ^ Robert von Hippel: German Criminal Law Volume 2 . Springer-Verlag, Luxemburg 1930, § 29.
  44. ^ Walter Gropp: Criminal Law General Part . 4th edition. Springer, Berlin 2015, ISBN 3-642-38125-1 , § 9, Rn. 46-48.
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  46. ↑ Reinhard Frank: The penal code for the German Empire . 18th edition. Moor. Tübingen 1831. Section 43 II 2b.
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  48. ↑ RGSt 1, 439 (441).
  49. ↑ Paul Bockelmann: The demarcation of preparation from the experiment . In: JuristenZeitung 1954, p. 468 (473).
  50. ↑ Thomas Hillenkamp: § 22 , Rn. 60. In: Heinrich Wilhelm Laufhütte (Ed.): Leipzig Commentary on the Criminal Code. Vol. 1: §§ 1 to 31 . 12th edition. De Gruyter, Berlin 2007, ISBN 978-3-89949-231-6 .
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  53. ↑ a b Kristian Kühl: § 22 , margin no. 4. In: Kristian Kühl, Martin Heger: Criminal Code: Comment . 29th, revised edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 .
  54. ↑ Albin Eser, Nikolaus Bosch: § 22 , Rn. 32. In: Adolf Schönke, Horst Schröder, Albin Eser (ed.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  55. ↑ Kristian Kühl: Criminal Law General Part . 7th edition. Vahlen, Munich 2012, ISBN 978-3-8006-4494-0 , § 15, Rn. 44.
  56. ↑ Claus Roxin: Decision to act and start of execution when trying . In: Juristische Schulung 1979, p. 1 (3).
  57. ↑ Kristian Kühl: Basic cases for preparation, attempt, completion and termination . In: Juristische Schulung 1980, p. 506 (507).
  58. ↑ Dieter Meyer: Delimitation of preparation from attempting a criminal act, BGHSt 26, 201 . In: Legal Training 1977, p. 19.
  59. ↑ Claus Roxin: Decision to act and start of execution when trying . In: Juristische Schulung 1979, p. 1 (5).
  60. ↑ Albin Eser, Nikolaus Bosch: § 22 , Rn. 42. In: Adolf Schönke, Horst Schröder, Albin Eser (ed.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  61. ↑ Harro Otto: Basic Course Criminal Law: General Criminal Law . 7th edition. De Gruyter, Berlin 2012, ISBN 3-89949-139-4 , § 18, Rn. 28.
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  63. ↑ Ulrich Berz: Basics of the beginning of the experiment . In: Jura 1984, p. 511.
  64. ^ BGH, judgment of March 9, 2006, 3 StR 28/06 = Neue Zeitschrift für Strafrecht 2006, p. 331.
  65. ↑ BGHSt 28, 162 .
  66. ↑ a b BGHSt 26, 201 .
  67. ^ Thomas Rönnau: Basic knowledge - criminal law: beginning of the experiment . In: Juristische Schulung 2013, p. 879 (881).
  68. ^ Wolfgang Joecks, Christian Jäger: Criminal Code: Study Commentary . 12th edition. CH Beck, Munich 2018, ISBN 978-3-406-67338-2 , § 22 , Rn. 34.
  69. ↑ Nikolaus Bosch: Immediate preparation for the experiment . In: Jura 2011, p. 909 (912).
  70. ↑ differently the BGH in the Pfeffertüte case before the current § 22 StGB came into force: BGH, judgment of December 20, 1951, 4 StR 839/51 = Neue Juristische Wochenschrift 1952, p. 514.
  71. ↑ Claus Roxin: Criminal Law General Part . 2: Special manifestations of the crime. CH Beck, Munich 2003, ISBN 3-406-43868-7 , § 29 Rn. 192.
  72. ^ Rudolf Rengier: Criminal Law General Part . 9th edition. CH Beck, Munich 2017, ISBN 978-3-406-71134-3 , § 34, Rn. 46-58.
  73. ↑ Hans Kudlich, Jan Schuhr: § 22 , Rn. 47. In: Helmut Satzger, Wilhelm Schluckebier, Gunter Widmaier (ed.): Criminal Code: Commentary . 3. Edition. Carl Heymanns Verlag, Cologne 2016, ISBN 978-3-452-28685-7 .
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  75. ↑ Kristian Kühl: attempt in indirect perpetration - BGHSt, 30, 363 . In: Juristische Schulung 1983, p. 180.
  76. ↑ Wilfried Küper: The beginning of the experiment with indirect perpetrators . In: JuristenZeitung 1983, p. 361.
  77. ↑ Jürgen Rath: Basic cases on the injustice of the attempt . In: Juristische Schulung 1999, p. 140 (143).
  78. ↑ Jürgen Meyer: Critique of the new regulation of experimental criminality . In: Journal for the entire criminal law science 1975, p. 598 (609).
  79. ^ Ingeborg Doll: The attempt of the indirect perpetrator . In: Gunter Widmaier, Heiko Lesch, Bernd Müssig, Rochus Wallau (eds.): Festschrift for Hans Dahs . Dr. Otto Schmidt, Cologne 2005, ISBN 978-3-504-06032-9 , p. 173 .
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  81. ^ A b Albin Eser, Nikolaus Bosch: § 22 , Rn. 54a. In: Adolf Schönke, Horst Schröder, Albin Eser (eds.): Criminal Code: Commentary . 29th edition. CH Beck, Munich 2014, ISBN 978-3-406-65226-4 .
  82. ↑ BGHSt 40, 257 (269).
  83. ↑ BGHSt 39, 236 (237).
  84. ↑ Thomas Rönnau: Basic Knowledge - Criminal Law: Beginning of experiments with complicity, indirect perpetration and spurious omission offenses . In: Juristische Schulung 2014, p. 109 (110).
  85. ↑ BGHSt 40, 299 (301-302).
  86. ↑ Thomas Fischer: Penal Code with ancillary laws . 65th edition. CH Beck, Munich 2018, ISBN 978-3-406-69609-1 , § 22 , Rn. 23a.
  87. ↑ BGHSt 40, 257 .
  88. ↑ BGHSt 40, 257 (271).
  89. ↑ Armin Kaufmann: The dogmatics of omission offenses . Otto Schwarz, Göttingen 1959, p. 210.
  90. ↑ BGH, judgment of November 6, 2002, 5 StR 361/02 = New Journal for Criminal Law Case Law Report 2003, p. 72.
  91. ↑ Kristian Kühl: § 23 , Rn. 6. In: Kristian Kühl, Martin Heger: Criminal Code: Comment . 29th, revised edition. CH Beck, Munich 2018, ISBN 978-3-406-70029-3 .
  92. ^ Ingeborguppe: The half-hearted resignation . In: Neue Zeitschrift für Strafrecht 1984, p. 488 (490).
  93. ↑ Hans Kudlich: Basic cases to withdraw from the attempt . In: Juristische Schulung 1999, p. 240 (241).
  94. ↑ BGH, judgment of February 7, 1986, 3 StR 25/86 = Neue Zeitschrift für Strafrecht 1986, p. 264.
  95. ↑ BGHSt 34, 53 (56).
  96. ^ BGH, judgment of May 19, 2010, 2 StR 278/09 = Neue Zeitschrift für Strafrecht 2010, p. 690.
  97. ↑ a b BGHSt 39, 221 .
  98. ↑ Claus-Jürgen Hauf: The newer supreme court case law on trial and resignation . In: Juristische Arbeitsblätter 1995, p. 776.
  99. ↑ Kristian Kühl: Criminal Law General Part . 7th edition. Vahlen, Munich 2012, ISBN 978-3-8006-4494-0 , § 16, Rn. 38-39.
  100. ↑ BGHSt 48, 147 .
  101. ↑ Rolf Herzberg: Problem cases of resignation by preventing the completion of the act . In: Neue Juristische Wochenschrift 1989, p. 862.
  102. ↑ Manuel Ladiges: The exemption from punishment if several people are involved . In: Legal Training 2016, p. 15.
  103. ↑ Ralf Kölbel, Susanne Selter: § 24 II StGB - Resignation in the case of several perpetrators . In: Legal Training 2012, p. 1.
  104. ^ BGH, decision of March 17, 2011, 4 StR 83/11 = Neue Juristische Wochenschrift 2011, p. 3465.
  105. ^ BGH, judgment of June 24, 1992, 3 StR 187/92 = New Journal for Criminal Law 1992, p. 536.