Justification

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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

dogmatics

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)

• Self-defense , § 32 StGB, § 227 BGB, § 15 OWiG
• State of emergency :
  • Justifying state of emergency, § 34 StGB, § 16 OWiG
  • defensive state of emergency, § 228 BGB
  • aggressive (attacking) emergency, § 904 BGB
  • Extra-legal emergency (disputed; if application is affirmed, often only as a reason for excuse)
  • Order emergency , cf. Section 11 Paragraph 1 SG, Section 63 Paragraph 2, 3 BBG
    • Legitimate order (basic reason for justification, only reason for excuse if there are obviously missing conditions)
    • illegal order (legally controversial; however reason for excuse)
• Self-help , § 229 BGB
  • Property defense , §§ 859, 860 and 1029 BGB
  • Right of possession (to compensate for the fact that these liens are initially without possession) at
    • Landlord's lien §§ 562b and 578 BGB
    • Leaseholder lien § 581 para. 2 and § 592 sentence 4 BGB
    • Innkeeper lien § 704 BGB
• Consent (for medical interventions see § 630d BGB)
  • justifying consent
  • presumed consent
  • hypothetical consent (disputed)
• Consent third party endangerment (disputed whether not case of objective attribution )
• Right of upbringing (but see restrictions / prohibition of the right to punishment )
• Right of resistance of Art. 20 Abs. 4 GG
• General law of enforcement in civil and public law
• Justifications from the Code of Criminal Procedure :
  • Rights to obtain evidence, §§ 48 ff , §§ 72 ff StPO; e.g.
    • Physical examination or blood sample also against the will of the accused, § 81a StPO
    • criminological indication z. B. at a funeral inspection, § 87 Abs. 3 StPO i. V. m. Section 168 (2) of the Criminal Code
  • Rights of investigators to seizure, surveillance of telecommunications, computer searches, use of technical means, use of undercover investigators and searches, §§ 94 ff StPO (e.g. in connection with offenses of violation of personal life and confidential area ( §§ 201 ff StGB )); z. B .:
    • Monitoring measures in the context of eavesdropping , §§ 100a ff StPO
  • Rights to arrest and provisional arrest, §§ 112 ff StPO; z. B .:
    • Provisional arrest , Section 127 (1) StPO
  • Identity determination, § 163b StPO
• special justifications from the criminal code:
  • Protection of legitimate interests in the case of libel crimes, Section 193 StGB
• special justifications from the civil code:
  • Removal of an overhang of plants at the property line § 910 BGB
  • Right to prosecute a swarm of bees § 962 BGB
  • Rights from the receipt of unsolicited services ( § 241a BGB) include e.g. B. embezzlement or damage to property in connection with these services
  • Management without engagement: §§ 677 and 679 BGB
• special justifications from the civil procedure code :
  • Enforcement powers: §§ 758 and 808 ZPO as well as § 909 ZPO old version
• especially in the case of a false omission offense : conflict of duties (controversial, whether not reason for excuse )
• Right of arrest according to the Prison Act § 87 StVollzG
• lawful exercise of duty (e.g. acts of a police officer)

No justification

• the exclusionary consent (is the exclusion reason)
• the coercion emergency (is excuse)
• the apologetic emergency (is a reason for excuse)
• the emergency excess
• the parental punishment law (according h. M. abolished § 1631, para. 2 BGB aF since 2000, a. A. about cooling AT , § 9 Rn. 77b)
• Insanity (may be a reason to exclude guilt )
• Criminal underage (is reason for exclusion of guilt)
• medical indication for termination of pregnancy , § 218a StGB; (already precludes realization of the facts)
• (Controversial: self-defense provocation )

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

Please note the information on legal issues!