Legal interest

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This article or paragraph presents the situation in Germany . Help us to describe the situation in other countries.

A legal good is a good or interest protected by the legal system . The protection of legal interests is the main task of criminal law and has a function that restricts criminal liability. According to the doctrine of legal interests, a criminal law norm should only be legitimate if it serves to protect legal interests. In contrast to the doctrine of the violation of legal obligations or the conception of personal injustice by Hans Welzel , the concept of legal interests focuses on the unworthy of success of an action. Moral ideas or mere feelings are not protected or punished by criminal law.

Tort law

Legal interests protected by tort are in particular life, body, health, freedom and property ( Section 823 (1) BGB). The Basic Law calls in Art. 1 to 19 GG constitutionally protected legal interests. Human dignity, guaranteed without reservation, enjoys the highest rank .

The type and number of protected legal interests are not conclusively defined. These include, for example, “the life that develops in the womb” as well as “trust in the functionality of the markets”.

If different legal interests collide, a weighing of interests is required .

Relationship between legal interests and norms

It is controversial in legal policy and dogmatically whether the legislature only creates individual legal interests through its decision by protecting them in a specific penal norm ( normative concept of legal interests) or whether the legislature has given legal interests which it must protect by creating penal norms ( over-positive legal good term).

This discussion became relevant with the incest ruling of the Federal Constitutional Court of 2008.

species

Criminal law generally distinguishes between individual and collective rights. The offenses against public order do not distinguish clearly.

The distinction primarily plays a role for the interpretation of an existing criminal law, but also for the weighing of interests in the case of a justifying emergency ( Section 34 StGB) or the possibility of justifying consent , which is only available for individual legal interests .

Because of the constitutionally standardized equality before the criminal law ( Article 3, Paragraph 1 of the Basic Law), no further differentiation is possible. Exclusive, highly personal legal interests that do not protect all individuals equally do not exist in criminal law. In principle, however, only the injured party can file a criminal complaint ( Section 77 (1) StGB).

Individual legal interests

Individual legal interests serve the interests of individual individuals. They are subject to the disposal of the individual. In the case of individual legal interests , a distinction is made between the legal interests of property crimes , the legal interests of physical integrity and the so-called personality-constituting legal interests, such as the legal interests protected by the offenses of honor .

Collective legal interests

Collective legal interests serve the interests of any number of people, in other words the general public. The literature distinguishes four different groups of collective legal interests:

According to the preamble paragraph 3 of the Rome Statute , the highest goods of the international community are “peace, security and the well-being of the world”.

Protection by the legal order

Individual legal interests

Typical individual rights are protected in Germany by basic rights : human dignity , physical integrity (life and limb), property, but also honor, sexual self-determination and much more. These basic rights grant or guarantee (depending on the legal philosophical point of view) subjective rights towards the state .

Legal interests are usually "available". The owner of a legal asset can dispose of (dispose of) his legal assets according to his / her free will. According to the prevailing opinion, human dignity and life are an exception .

The unlawful violations of legal rights and interests are protected under civil law in the law of tortious acts ( tort law ) (§ § 823 ff. BGB ) and can trigger claims for damages . At the same time, injunctive relief and removal claims may exist in the corresponding application of Section 1004 of the German Civil Code (so-called “ quasi-governmental claim ”). With regard to legal consequences, there does not have to be any damage to the legal interest (“substance-ontological concept of legal interest”), but under civil law compensation always requires mercantile damage. In addition, compensation for pain and suffering ( Section 253 (2) BGB) can be awarded as a legal consequence in certain cases in the case of immaterial damage .

If the unlawful interference exceeds a certain threshold, this can be punished under criminal law. The threshold is determined according to the respective success and disability . The protection of individual legal interests under criminal law arises from the duty of the constitutional and welfare state to protect individual legal interests . An interference with individual legal interests that is relevant under criminal law is at the same time an interference with the legal system as such.

However, according to the constitutional principle of proportionality, there are limits to the protection of legal interests under criminal law . State sanctions may only be used if the protection of a legal interest cannot be achieved in any other way (e.g. the state's right to punishment ). Since criminal law is only used as the last possible means of protecting a legal asset, one often speaks in this context of the subsidiarity of criminal law or of criminal law as the ultima ratio .

Collective rights

Collective rights are not or hardly protected under civil law, as their violation usually does not harm the individual directly. Unlawful interventions in collective rights are sanctioned under administrative law as administrative offenses or under criminal law, for example, as deception in legal transactions ( forgery of documents ). Collective rights are also the "safety and ease of traffic", protected according to. § 1 StVO in the obligation to mutual respect or the environment in its various forms as a natural basis for human life.

Protected goods

The risk analysis understands as protected goods everything that should be protected from damage due to its ideal or material value.

The Civil Defense , for example, includes the protection of health, public infrastructure or the protection of cultural property .

According to the precautionary principle applicable in environmental law , protected assets such as the soil and its function in the natural balance are recorded and assessed by the nature conservation law intervention regulation in order to be able to properly weigh competing land uses against each other and to compensate for impairments. Among the protected assets, which at one environmental assessment for. B. are to be considered according to the law on environmental impact assessment , include people , in particular human health , animals, plants and biological diversity , area, soil, water, air, climate and landscape, cultural heritage and other material assets as well as the interactions between the named protected assets.

Anglo-American Law

The dogmatics of the Anglo-Saxon legal system has no real equivalent to the concept of legal interest.

In contrast to the German legal property theory, the Anglo-American understanding of criminal law uses the harm principle , which goes back to the British philosopher John Stuart Mill and which also influences international criminal law . The harm principle is not linked to the protection of certain legal interests, but rather criminalizes potentially damaging behavior.

The English Crime and Disorder Act of 1998 and the Anti-Social Behavior Act of 2003 are directed against all forms of "anti-social behavior".

literature

  • Roland Hefendehl, Andrew von Hirsch, Wolfgang Wohlers (eds.): The legal property theory: legitimation basis of criminal law or dogmatic glass bead game? Baden-Baden, Nomos Verlagsgesellschaft 2003. ISBN 978-3-8329-0157-8
  • Petra Wittig : Theory of legal interests, “harm principle” and the delimitation of areas of responsibility. In: Hefendehl, von Hirsch, Wohlers (Ed.): Die Rechtsgutstheorie. Legitimation basis of criminal law or dogmatic glass bead game? Baden-Baden 2003, pp. 239–243

Web links

Individual evidence

  1. ↑ Rechtsgut, das duden.de, accessed on August 29, 2017
  2. ↑ Sabine Swoboda: The doctrine of legal interests and their alternatives . ZStW 2010, p. 24 ff.
  3. ^ Wilhelm Gallas , Festschrift for Gleispach , 1936, p. 50 ff.
  4. ↑ Detlef Krauß: Unworthy of success and unworthy of action in the wrong. ZStW 1964, published online on November 2, 2009
  5. ↑ Eric Hilgendorf : Punitivity and doctrine of legal assets. Skeptical comments on some of the key terms of today's criminal law theory NK 2010, pp. 125–131
  6. ^ Mathias Metzner: The individual basic rights bpb , March 4, 2013
  7. ↑ BVerfG, judgment of February 25, 1975 - 1 BvF 1, 2, 3, 4, 5, 6/74
  8. ↑ Katharina Beckemper: The legal asset "Trust in the functionality of the markets" ZIS 2011, pp. 318–323
  9. ↑ cf. BVerfGE 120, 224 No. 39
  10. ^ Claus Roxin : On the criminal liability of sibling incest . StV 2009, pp. 544-550
  11. ↑ Luís Greco : What does the Federal Constitutional Court leave of the doctrine of legal interests? Thoughts on the incest ruling by the Federal Constitutional Court ZIS 2008, pp. 234–238
  12. ^ John Philipp Thurn: Eugenics and moral protection through criminal law? Constitutional remarks on the incest prohibition decision of the Federal Constitutional Court Kritische Justiz 2009, pp. 74–83
  13. ↑ Armin Engländer : Revitalization of the material doctrine of legal interests through constitutional law? ZStW 2015, pp. 616–634
  14. ↑ Roland Hefendehl : The Doctrine of Legal Assets and the Special Part of Criminal Law: A Dogmatic-Empirical Comparison of Chile, Germany and Spain ZIS 2012, pp. 506-512
  15. ^ Martin Heger : Kriminalpolitik und Criminalrechtsdogmatik  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. Lecture “Criminal Policy in the FRG” 2016, p. 1/2@1@ 2Template: Toter Link / heger.rewi.hu-berlin.de  
  16. ↑ Martin Reulecke: Equality and criminal law in German natural law of the 18th and 19th centuries. Mohr Siebeck , 2007. ISBN 978-3-16-149354-6
  17. ^ BGH, decision of May 14, 1970, file number 4 StR 131/69 , BGHSt 23, 261
  18. ↑ Lars Berster: Desecration of corpses as a war crime Discussion by BGH, decision of September 8, 2016 - StB 27/16 ZIS 2017, pp. 264, 269
  19. ^ Roland Hefendehl: Protection of collective legal interests / Environmental Criminal Law University of Freiburg, 2013
  20. ↑ Protected property website of the Federal Office for Civil Protection and Disaster Assistance , glossary, accessed on August 30, 2017
  21. ↑ Soil as a protected asset in the planning stage. Evaluation of natural soil functions and implementation in planning and approval procedures Bavarian State Office for Environmental Protection , Augsburg 2003. ISBN 3-936385-44-0
  22. ↑ The protected good soil in the nature conservation law intervention regulation work aid. State Institute for the Environment, Measurements and Nature Conservation Baden-Württemberg, 2nd revised edition, December 2012
  23. ↑ Markus Dubber: Rechtsgut and Harm Principle University of Toronto, 2006 (English)
  24. ↑ Arthur Ripstein: Beyond the Harm Principle June 2, 2006 (English)
  25. ^ Kai Ambos : The Overall Function of International Criminal Law: Striking the Right Balance Between the Rechtsgut and the Harm Principles. A Second Contribution Towards a Consistent Theory of ICL Criminal Law and Philosophy 2015, pp. 301–329 (English)
  26. ↑ Marc Thommen: Tolerance & Anti Social Behavior in: Andrew von Hirsch, Kurt Seelmann, Wolfgang Wohlers (Eds.): Mediating Principles. Limitation principles in the justification of punishment . Nomos Verlagsgesellschaft, 2006. ISBN 3-8329-1933-3 . Pp. 109-120