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Illegality is generally the violation of a legal entity against the applicable law . The opposite is legality .


In criminal law , an act that fulfills the criteria of a penal norm and is not justified is unlawful and, if at fault , always punishable . In civil law , the illegality of an act is a prerequisite for claims for damages .

If one calls unlawful what is in contradiction to legal commandments , then only a human act or omission that is linked to the command can be unlawful in this sense . So the causal sequence of action and the resultant occurrence of its success itself cannot be forbidden . Contrary to earlier widespread teaching act or omission and may success does not belong to the forbidden and illegal in this sense Done: There is only one act wrong (forbidden actions, such as shooting at someone.), But no success injustice (no verbietbares Result of the action, e.g. that the other is hit and dies), but a success- related prohibition of action (such as the prohibition of actions that are directed against or endanger the life of another ).

The illegality stands against the legality .

Criminal law

In the context of the tripartite structure of German criminal law , the execution of the criminal offense must be unlawful and culpable so that the perpetrator can be punished. With regard to illegality, a distinction is made between causal , final and social action theory . These either require positive proof of illegality (outdated doctrine of action) or see them as already indicated by the factuality ( h. M. , more modern theory of finality).

If the unlawfulness is indicated by the factual nature of the offense, the following applies: An act is always unlawful if there is a violation of the legal system (so-called “wrongful act”) without any justification . Reasons for justification are, for example: self-defense ( § 32 StGB ), the general justifying state of emergency ( § 34 StGB) or, in the context of the right to dispose of the affected legal asset, consent ( volenti non fit iniuria ), e.g. § 228 StGB. In the case of so-called open criminal offenses such as coercion , in addition to the fulfillment of the offense and the lack of justification, other special conditions must be met so that the act can be viewed as unlawful.

The perpetrator must be aware of the objectively present reason for justification and act willingly on the basis of the justification in order for his discharge to be successful. If the subjective element of justification is missing, the traditional h. M. assumes that the offense is punished. After more recent and today probably h. M. already the existence of the objective prerequisites for reasons of justification omits the unworthy of success of the act. In some cases, analogous application of the rules on experimental criminality, the legal consequence is compared to the unsuitable attempt .

After determining the injustice, the guilt ( culpability , insight and control , awareness of injustice , lack of excuse ( exculpation )) must be examined.

civil right

In German civil law, the illegality occurs alongside the breach of duty or legal interest and the culpability to justify claims for damages.
In Swiss jurisprudence, illegality constitutes one of four criteria (in addition to damage, fault and causal connection) to justify fault liability. According to prevailing doctrine, causal liability is assumed to be illegal. Swiss case law is based on the theory of objective illegality.

The illegality requirement defines which categories of damage are eligible for compensation. These are firstly those that result from the violation of absolutely protected legal interests, and secondly pure financial losses that result from the violation of a so-called protective norm, a legal provision that aims to protect the property of the injured party. The illegality ceases to exist if the damage has arisen with the injured person's valid consent or from self-defense, emergency or self-help action (so-called grounds of justification, cf. Art. 52 OR ).
In most legal systems outside of the German legal circle , there is no clear distinction between illegality and fault.

Public law

In the German administrative law the illegal can administrative nevertheless effective and upon the occurrence of the existing power incontestable are ( relative invalidity ). Only void administrative acts are ineffective from the start, cf. Section 43 (3) VwVfG ( error calculation ).

A distinction is made between formal and material illegality (or legality). One speaks of formal illegality if there is a violation of procedural rules, in particular the rules governing the competence of the administrative authorities. In the case of formal illegality, only a serious error (completely incompetent authority, insane public official, pure arbitrariness or violation of the prescribed written form ) justifies the nullity of the administrative act . But even those administrative acts that are largely unclear or indefinite are classified as void. Substantive illegality occurs when the result of a power standard adopted administrative act does not comply with the requirements of the standard power and those affected in his individual rights violated.

Unlawful laws must be repealed by a constitutional court ( Art. 100 ). They may be declared null and void with effect ex nunc ( Section 78 BVerfGG).

Individual evidence

  1. a b Reinhold Zippelius : Law and Justice in the Open Society . 2nd Edition. 1996, p. 356 f., 360 ff . (Original title: Archives for civilist practice . 1958.).
  2. ^ Legal dictionary: subjective justification elements
  3. G. Wagner: Commentary on §§ 823-838 BGB , in: Münchner Commentary on the BGB, N 1 on § 823.