Legitimate alternative behavior

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Under lawful alternative behaviors are in the jurisprudence cases treated was indeed acted unlawfully where, and thereby damage has occurred, the damage would have occurred even with but lawful conduct or could have occurred. The question of the lawful alternative behavior arises as a relevance criterion of a breach of duty by the perpetrator for the occurrence of the factual success and thus in connection with the so-called objective attribution of the act. In criminal law it is derived from the principle in dubio pro reo .

A much-cited example is the cyclist case: a truck driver did not keep enough distance from a drunk cyclist and the cyclist was run over. However, the accident would also have happened if the distance had been kept.

Criminal law

In criminal law, legitimate alternative behavior means, in the area of ​​objective attribution, a constellation in which the risk based on the offender's behavior in breach of duty is not reflected in the actual success of the offense, because even if the offender behaved in accordance with the law, the success would nevertheless occur or at least with a probability bordering on certainty would.

If there is a case of lawful alternative behavior, there is no criminal liability for lack of objective attribution. For this it is necessary that the perpetrator has created a legally disapproved danger, which is realized in the actual factual success. Since if the perpetrator had behaved properly, the success would also have occurred, the perpetrator cannot be blamed for the success as such. Accordingly, the behavior contrary to duty did not necessarily occur, i.e. H. the legally disapproved danger is reflected in concrete success.

A drives his car at increased speed through a built-up area. Suddenly the drunk B staggered in front of the vehicle. B dies in the accident. A would not have been able to brake in time even if the correct speed had been maintained. Since the risk of driving too fast was not reflected in the success, A cannot be punished according to § 222 StGB .

Application of the indubio-pro-reo principle

The prevailing opinion also applies the principle in dubio pro reo in cases of lawful alternative behavior . This means that if there are already concrete indications that the same result might have been achieved with dutiful behavior , there is no criminal liability in favor of the offender.

The Federal Court of Justice also applied this principle in the following case:

The cyclist R dies when the truck driver L overtakes him with too little side clearance. Since R (not recognizable to L) was very drunk, there is reason to assume that he would have gotten under the trailer even if L had kept the required safety distance. Due to the remaining doubts about the connection with the breach of duty, the death of R is not to be attributed to L.

Significance in cases of negligence

The figure of lawful alternative behavior is particularly important in the case of negligence offenses in the context of what is known as a breach of duty . The connection with the breach of duty does not only refer to the causality of the breach of duty of the perpetrator for the occurrence of success; In the case of an offense of negligence, it is always necessary that the legally disapproved danger created by the offender's breach of duty of care has occurred between the offender's behavior on the one hand and the success of the offense on the other. This connection is missing if the success would also have occurred with dutiful alternative behavior.

Problem of different scales

In certain cases it is questionable which specific alternative behavior should be used for avoidability or inevitability of success. Different standards can be used to measure the lawful alternative behavior, which results in correspondingly different results. This becomes clear in the following example:

A drives at the maximum permissible speed of 50 km / h. A child jumps in front of the vehicle, causing an accident and causing fatal injuries. An expert report shows that A had a blood alcohol concentration of 1.1 ‰ at the time of the crime . At a speed of 50 km / h, A would not have been able to prevent the event even in an empty state. However, the accident would not have happened if he had driven at the speed of 20 km / h appropriate for his level of drunkenness.

The jurisprudence takes the view that the decisive alternative behavior consists in driving in an intoxicated state at a correspondingly adapted speed. Accordingly, it is important to determine whether the accident would have been avoided if the driver had reduced his speed in accordance with his intoxicated state with the associated reduced ability to react. Since A did not drive correspondingly slower in the example, as would have been expected of him, the death of the child can be attributed to him. The main argument used is Section 3 (1) StVO , according to which a driver is only allowed to drive as fast as he can control his vehicle.

However, this is opposed to the standardized driving ban in accordance with § 316 StGB and § 24a StVG . In this case it would be contradicting itself to set up an adapted speed for a drunk driver and thus to apply a different standard for the alternative behavior, because a drunk is not allowed to drive at all, not even at an adapted speed. Accordingly, the prevailing opinion in the literature is based on whether the accident would have been avoidable in the specific situation. The starting point is a sober ride. According to this standard, the accident and the death of the child would also be in the case of dutiful behavior, i.e. H. not prevented by lawful alternative behavior (driving without alcohol). From this it follows that the connection with non-compliance and thus also the criminal liability for negligence (according to § 222 StGB) does not apply.

civil right

In civil law , lawful alternative behavior plays a role in liability in compensation cases . Legal alternative behavior is opposed to a claim for damages. It can be used in any liability process; the figure of lawful alternative behavior in cases of doctor and official liability has special practical significance .

Dogmatic approach

Legitimate alternative behavior as a problem of causality

Parts of the literature see the objection of legitimate alternative behavior as a problem of causality . According to this approach, the concept of causality also includes ideal and normative conditions such as non- compliance and is not limited to a causation by real forces in the sense of a scientific causation (so-called “normative concept of causality”). However, the prevailing view today is based on a scientific concept of causality. The main argument is that a normative concept of causality mixes up different categories without an existing necessity, which are to be treated differently in terms of evidential law . The scientific induction in the sense of a real cause of the damage through the behavior of the perpetrator is out of the question in the case of lawful alternative behavior.

It is important to note that the “ condicio-sine-qua-non-formula ”, which states that a condition is only causal if it cannot be thought away without the success in its concrete form being lost in cases of legal alternative behavior reaches its limit. If this is based on the wording, one would come to the conclusion that the illegal behavior was not the cause, since precisely this, because the success would also have occurred with legal behavior, is not a necessary condition (“condicio sine qua non ”) for success. So this does not explain the real causality, but presupposes it. According to it, causality in the sense of liability would already be eliminated if, despite the real causality between action and success, this had also occurred differently.

Legal alternative behavior as a problem of damage attribution

The specialist literature is inconsistent as to the basic aspects under which lawful alternative behavior should be treated in the context of the assessment of damage. In some cases it is argued that it is a question of hypothetical causality , in some cases it is treated as a question of the context of illegality, and in some cases it is also regarded as a question of the protective purpose of the legal norm that has been violated. The jurisprudence is also inconsistent with regard to the legal dogmatic approach. Against the classification of the legitimate alternative behavior as a problem of hypothetical causality speaks u. a. that this is set by a person other than the perpetrator, whereas the lawful alternative behavior relates to a hypothetical behavior of the person who actually acted. In addition, the hypothetical causality is a reserve cause that actually took place and simply could no longer lead to success, whereas the objection of legitimate alternative behavior is based on a complete hypothesis. Also the prevailing view, according to which the objection of legitimate alternative behavior is a problem of protection, has been criticized in many ways. For example, the protective purpose of the standard is about delimiting the fact of a liability provision from its basic attribution horizon and generally determining its scope. In the case of lawful alternative behavior, on the other hand, the question is whether the course of events, which outwardly meets these same requirements of the normative purpose, should not be disregarded due to specific, individual circumstances. In the case of lawful alternative behavior, the "scope" or the "sense of meaning" of the damage is not called into question, but only those consequences of damage that would have occurred if the behavior had been correct.

Significance of the alternative behavior

principle

The prevailing opinion considers the lawful alternative behavior to be substantial. In the event that damage occurs, the damage that has occurred is not attributable to the damage caused, despite lawful conduct on the part of the injuring party.

literature
Doctrine of the protective purpose of the standard

Sections of the literature that view legitimate alternative behavior as a problem of the protective purpose of the standard differentiate according to whether it is the protective purpose of the specific standard to prevent the damaging behavior (type of injury) or the damage at all (injury success). Only in the first case does the objection of lawful alternative behavior come into consideration. The legal idea is valid that whoever has chosen an illegal instead of a lawful path, has to adhere to the path of his choice and has to take the consequences. Others criticize this differentiation. In some cases, the question is asked why an appeal to the objection of legitimate alternative behavior should be excluded in cases in which the violated norm is intended to protect against complete damage. The possibility of lawfully causing the damage shows that the injured party should not be protected against it in every case. In addition, it is stated that the problem of lawful alternative behavior is only relevant in cases in which the damage that has occurred is covered by the protective purpose of the standard. If, however, the violated norm is specifically intended to prevent the specific damage, the reverse conclusion would always have to deny that the legal alternative behavior is relevant. A special justification is therefore required for the reasons for which the protective purpose of the violated norm should in any case allow the legal alternative behavior to be invoked. However, this view does not provide any such justification. Rather, it is important to note that the protective purpose of a standard ends where the same result would have occurred through lawful behavior, or that a standard does not want to prevent damage that would have occurred even with behavior in accordance with the standard, since it cannot prevent this.

Doctrine of the context of illegality

The doctrine of the context of illegality sees the objection of legitimate alternative behavior as consistently significant. It is stated that the purpose of the law on damages is to compensate for unlawful damage suffered that arose as a result of disregard of liability norms for damages. If, however, the damage had occurred even with lawful conduct, the illegality would lose its function as a fundamental element of the obligation to pay compensation. A connection with illegality does not exist. If one wanted to affirm an obligation to pay damages in such cases, one could only do so under the aspect of sanctioning, which, however, was alien to the law on damages.

Jurisprudence

The jurisprudence is inconsistent both with regard to the question of the dogmatic classification as well as the respectability of the lawful alternative behavior. It can be said, however, that the highest court rulings consider the lawful alternative behavior to be fundamentally significant. Damage that would have occurred even if there was lawful behavior is not covered by the protective purpose of the standard. However, the case law reserves the right to make a decision in individual cases. The protective purpose of the specific norm could result in the fact that the appeal to the lawful alternative behavior is excluded. However, there are no standardized delimitation criteria for when the protective purpose of a norm denies appeal to lawful alternative behavior and when not.

Individual problem areas

Public liability

In principle, the objection of lawful alternative behavior is also relevant to state files and decisions. Even in the case of unlawful behavior, the citizen should in principle not be in a better position than he would be in the case of lawful behavior. This is not a problem if only one act would have been lawful, for example an incompetent authority confiscated food that the competent authority would also have confiscated due to salmonella infestation . In cases in which authorities have been granted discretion , a distinction must be made: If the discretion was reduced to zero , i.e. only a decision by the authority was legally possible, or if the authority had an administrative practice to always treat comparable cases in the same way, then the objection can be raised be substantial. When it comes to the question of how the authorities would have decided, the judge’s findings in the process are essential. These findings are based on what an actual decision would have looked like, not which decision would have made sense in retrospect. However, it must be taken into account that if essential procedural and protective regulations are violated, the objection cannot take hold. Failure to apply for an arrest warrant or omission of expropriation proceedings is not significant even if this could have been done properly.

Medical Liability

Lawful alternative behavior in connection with inadequate or neglected patient information plays a role in medical liability proceedings . In principle, the doctor can plead that the patient would have made the same decision if properly informed. However, it is not enough that a sensible patient or even the majority of the patients have made the appropriate decision despite being informed. The reason for this is that the patient's freedom of choice must be respected, which also includes the right to make irrational decisions. It is therefore crucial whether the specific patient in his situation would have consented to the procedure with sufficient medical information. If the doctor presented sufficient evidence in the process and if necessary evidence was offered, the objection is always significant. According to this, the patient must plausibly demonstrate that he would have found himself in a conflict case if he had been informed about the justified objection to legal alternative behavior by the doctor. If the relevant factual presentation by the doctor is only made during the appeal , it is a matter of introducing a new means of defense, which can be rejected according to Section 531 (2) No. 3 ZPO .

Burden of proof

In cases of lawful alternative behavior according to general principles, the burden of proof lies with the person who claims that the damage occurred in whole or in part, even in the case of lawful behavior. In principle, however, the standard of Section 286 ZPO should not apply here , but rather the somewhat less strict Section 287 ZPO, since the question is not whether a success has occurred, but what damage. In any case, a purely speculative factual presentation on possible behavior of the injured party in the case of alternative lawful behavior is insufficient.

See also

  • Risk increase doctrine , inferior opinion in criminal law, according to which the objective attribution in the case of legal alternative behavior is nevertheless affirmed in corresponding case constellations, since it cannot be proven in principle that the legal alternative behavior would actually have prevented the offense; However, due to the in dubio pro reo principle, according to h. M. refused
  • Scrambled Egg Theory

literature

  • Volker Erb : Lawful alternative behavior and its effects on the attribution of success in criminal law - a systematic presentation taking into account the relevant civil law issue , University dissertation, Mainz 1990

Individual evidence

  1. ↑ K. Grechenig & A. Stremitzer, The objection of legal alternative behavior - legal comparison, economic analysis and implications for proportional liability, Rabels Zeitschrift für Ausländisches und Internationales Privatrecht (RabelsZ) 2009, 336–371. (link)
  2. ↑ a b BGH, decision of September 27, 1957 , Az. 4 StR 354/57, full text = BGHSt 11, 1 - cyclists.
  3. ↑ See Johannes Wessels / Werner Beulke : Criminal Law General Part , 37th Edition, CF Müller Verlag, 2007 Heidelberg, Rn. 675 f.
  4. ↑ BGH, decision of November 26, 1970 , Az. 4 StR 26/70, full text = BGHSt 24, 31, 34.
  5. ↑ Eisele, Jörg , JA  2003, 40 ff.
  6. ↑ Hanau, Peter : The causality of the breach of duty , Göttingen 1971, ISBN 3-509-00546-5 , p. 23/24.
  7. ↑ a b Dirk Looschelders : Law of Obligations General Part , 5th Edition, Düsseldorf 2007, ISBN 3-452-25973-0 , Rn. 895.
  8. ↑ Palandt / Heinrichs : Commentary on the Civil Code , ISBN 3-406-56591-3 , before Section 249 BGB marg. 57 mwN
  9. ↑ a b c d Helmut Weber : The evidence of causality in civil proceedings , Tübingen 1997, ISBN 3-16-146745-0 , pp. 87, 107.
  10. ↑ Werner Beulke / Gregor Bachmann : The " leather spray decision " - BGHSt 37, 106 , in: JuS  1992, 738.
  11. ↑ BGH, judgment of July 6, 1990 , Az. 2 StR 549/89, full text = BGHSt 37, 106.
  12. ↑ Oetker: Munich Commentary , Volume 2 (Law of Obligations General Part), Verlag CH Beck , Munich, ISBN 978-3-406-54842-0 , § 249 Rn. 211.
  13. ↑ a b c Esser / Schmidt : Law of Obligations I. General Part , 8th Edition, Karlsruhe 2000, ISBN 3-8114-2092-5 , § 33 III 2, p. 227.
  14. ^ Medicus, Dieter : Bürgerliches Recht , 21st edition, Carl Heymanns Verlag , Cologne / Berlin / Munich, 2007, ISBN 978-3-452-26430-5 , Rn. 852
  15. ↑ See the overview in Lange / Schiemann : Damages , 3rd edition, Mohr-Siebeck, Tübingen 2003, ISBN 3-16-147984-X , § 4 XII 3.
  16. ^ Karl Larenz / Claus-Wilhelm Canaris : Textbook of the Law of Obligations , Volume I, General Part, 14th Edition, 1987, ISBN 3-406-36534-5 , § 30 I, p. 528.
  17. ^ Erwin Deutsch : General Liability Law , 2nd Edition, Cologne, Munich 1995, ISBN 3-452-22692-1 , Rn. 186.
  18. ^ Rainer Frank / Eike Löffler : Basic questions of overtaking causality , JuS 1985, 698-894.
  19. ^ Helmut Wissmann : The appeal to lawful alternative behavior , NJW  1971, 550.
  20. ↑ Lange / Schiemann: Damages , 3rd edition, Mohr-Siebeck, Tübingen 2003, ISBN 3-16-147984-X , § 4 5 b.
  21. ↑ Oetker: Munich Commentary on the BGB , 3rd edition Munich 2007 ff., ISBN 3-406-45870-X , before § 249 BGB marg. 215.
  22. ↑ Volker Erb : Legal alternative behavior and its effects on the attribution of success in criminal law - a systematic presentation taking into account the relevant civil law issue , University dissertation , Mainz 1990, ISBN 3-428-07179-4 , p. 88.
  23. ↑ Brigitte Borgmann / Karl H. Haug : Lawyers' liability , 3rd edition, Munich 2000, ISBN 3-406-37805-6 , p. 183 Rn. 47/48.
  24. ↑ BGH NJW 1994, 1397; BGH, judgment of November 25, 1992 , Az. VIII ZR 170/91, full text = NJW 1993, 520; BGH, judgment of October 26, 1999 , Az. X ZR 30/98, full text = NJW 2000, 661 f .; BAGE  6, 376.
  25. ↑ BGH, judgment of October 26, 1999 , Az. X ZR 30/98, full text = NJW 2000, 661.
  26. ^ BGH, judgment of October 24, 1985 , Az. IX ZR 91/84, full text = NJW 1986, 576; VersR  1986, 1183.
  27. ↑ a b Lange / Schiemann, Damages , 3rd edition, Mohr-Siebeck, Tübingen 2003, ISBN 3-16-147984-X , § 4 XII 5 e.
  28. ^ BGH, judgment of November 2, 1970 , Az. III ZR 173/67, full text = NJW 1971, 239.
  29. ↑ Roland Rixecker in: Geigel / Schleglmilch: The liability process , 24th edition, Verlag CH Beck, Munich 2004, ISBN 3-406-50596-1 , §1994, 13971 Rn. 47.
  30. ↑ a b c Kunschert in: Geigel / Schleglmilch, The liability process , 24th edition, Verlag CH Beck, Munich 2004, ISBN 3-406-50596-1 , § 20 marginal no. 24.
  31. ↑ a b c Lange / Schiemann, Damages , 3rd edition, Mohr-Siebeck, Tübingen 2003, ISBN 3-16-147984-X , § 4 6.
  32. ↑ a b BGH judgment of November 18, 2008 , Az. VI 198/07, full text = NJW 2009, 1209, 1211.
  33. ^ BGH judgment of March 5, 2009 , Az. III ZR 17/08, full text = WM  2009, 739.
  34. ↑ BGH, judgment of September 13, 2004 , Az. II ZR 276/02, full text, Rn. 37.