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Reasons for justification are permissions which, in exceptional cases, permit prohibited actions in individual cases.

civil right

In the area of tort law , the legislature has regulated the liability for damages for unlawful acts. Here, too, as in criminal law, the unlawfulness of the act is indicated by the realization of the offense . The factuality is excluded if justification reasons intervene. The law of tort is based on all justification grounds of the legal system. However, since the main concern is the restitution of damage, there is sometimes an obligation to pay compensation for the damage caused in the emergency situation.

Public law

According to the rule of law , people are granted basic rights in the form of human and civil rights. These are designed as the citizens' rights of defense against the state. The granting of these rights cannot, however, be unlimited. Rather, the state intervenes in these rights in many ways through its actions. However, these interventions must be justified and consequently require a justification. Under constitutional law, the fundamental rights are given concrete form through their so-called barriers , usually through laws. This limit is referred to as a legal reservation or - more strictly - a parliamentary reservation. In principle, the constitution itself is also suitable for formulating barriers. These barriers are so-called "constitutional" barriers. As a third barrier, the fundamental rights of others come into consideration (so-called "constitutional" barriers). If two fundamental rights that restrict one another have to be weighed against each other, this is done according to the principle of so-called practical concordance .

Criminal law


According to the German three-tier structure of the offense (in the sense of the lesson or lesson of action in criminal law, which were not only occasionally or previously ), the violation of a criminal law (the so-called factuality) alone does not constitute the criminal liability of the offender. Rather, the illegality of the act is ruled out as early as the second important examination stage if the perpetrator has a reason to justify it. Injustice is not committed if the perpetrator can rely on such a justification.

German criminal law knows numerous reasons for justification, which are not listed exhaustively. Although these are substantive regulations, they are not compulsory in the penal code , but are partly regulated in the BGB and other civil law codes; Reasons for justification can also arise from customary law , as they intervene in favor of the offender.

All justification reasons have in common that they are objectively present when a certain danger, an attack or some other damaging event is to be averted. Subjectively, it is necessary that the perpetrator who invokes the justification also acts with the will to avert this danger or the attack. If the offender does not have a will to defend himself or to rescue himself, the offense is considered illegal and the offender is punished. It is a matter of dispute how the perpetrator should be punished.

Legal consequences

One view includes the fact that the outcome of the crime is at least objectively in line with the legal system in determining the sentence. This opinion sticks to the illegality of the act in the absence of a subjective will to defend itself and punishes it for the correlated act of intent or negligence .

Another view uses the basics of attempted criminality to find a solution. In the context of §§ 22 ff StGB , a distinction is made between the wrong to act and the wrong to succeed. Since the attempt did not result in the offense, the wrongdoing also does not apply. According to §§ 22 and 23 Paragraph 2 i. V. m. 49 StGB are punished more leniently, because in a criminal attempt only the wrongdoing is punished. Applied to the lack of a will to defend, this means that the perpetrator acts unlawfully (wrong to act), but the success of the act is not unlawful or culpable due to the objective prerequisites for a justification or excuse, and therefore the wrong to succeed does not apply. As a consequence, this view draws the conclusion that if there is no will to defend, but otherwise objective conditions exist, the act can be punished like an attempt. The perpetrator consequently makes himself liable for attempting the act if it is an act of intent. If an act of negligence is the basis, the existence of the objective grounds for justification or apology is sufficient for a justification or apology , since there is no attempt at an act of negligence.

The second view is followed, as it takes into account the system of wrongdoing and wrongdoing of the Criminal Code, which is also the basis for attempted criminality.

Reasons for justification Germany (sample catalog)

No justification

The error about the actual existence of a reason for justification is the permissibility error .