Rule example

from Wikipedia, the free encyclopedia

In German criminal law , one speaks of rule examples when examples of a crime are listed in which “as a rule” an aggravating, “ particularly serious case ” or a “less severe case” is present. In contrast to the qualification , which, as a more specific criminal offense, supersedes the basic offense, the standard example only influences the sentencing . One therefore also speaks of a "sentencing rule".

In addition, one speaks of standard examples in areas other than criminal law when an offense is to be fulfilled “as a rule” or “in particular” in the cases specifically mentioned.

Definition and terminology

Standard examples represent a legal standardization of less severe or particularly severe cases of a basic offense. These particularly severe or less severe cases do not constitute qualifications , but are only to be taken into account at the level of the street size .

example

Particularly serious case of theft

A classic example of a particularly serious case, which is provided with standard examples, is the particularly serious case of theft: Example ( Section 242 (1) StGB - Theft ):

Who is punished with imprisonment of up to five years or with a fine.
In particularly serious cases, theft is punishable by imprisonment from three months to ten years. A particularly serious case is usually when the perpetrator
1. [...]
2. [...]
3. [...] ( Section 243 (1) StGB - Particularly serious case of theft )

Here, not only is the range of punishment higher than that for simple theft, but the prerequisites that must be met for a rule example are described in such detail and concrete in the individual figures that they can be checked like elements of the offense .

Function and effect

Indicative effect / rule effect

Standard examples are therefore neither mandatory nor conclusive. As the name suggests, they only intervene “as a rule”, ie only indicate the particularly severe or less severe case (“indicative effect” / “rule effect”). If a rule example is available, there is only a rebuttable presumption that there is a less severe case or a particularly severe case. The court can therefore deny the particularly serious / less serious case, despite the existence of facts corresponding to the standard example , because there are special circumstances that the legislature did not take into account. If a standard example is available, the assumption of a less severe case or a particularly severe case usually does not require any (other) special justification.

Negative effect

If a rule example does not exist at the moment, a rebuttable presumption speaks against a mitigation or tightening of the penalty; it is a classic counter-conclusion .

Analogy effect

Rule examples also have an analogy effect : If none of the rule examples is available for a crime, but the case is comparable to one in terms of guilt or injustice, then it is a so-called unnamed particularly serious or less serious case.

The argument that this would violate the prohibition of analogy is countered by the following: Rule examples are usually worded similar to facts , but do not represent real facts ; as pure rules on the determination of sentences, they would have an influence on the determination of sentences, but not on criminal liability as such. The rule example technique has a positive effect on legal certainty , since the formulation of examples gives the judges clues as to what is to be regarded as a less severe or particularly severe case.

Therefore, the interpretation of the element of the offense "particularly serious case of theft" in Section 243, Paragraph 1, Sentence 1 of the Criminal Code is permissible by comparing the examples of rules expressly named by the legislator for particularly serious cases in Section 243, Paragraph 1, Sentence 2 of the Criminal Code.

Requirement of an overall assessment

Despite the above-mentioned effects, the prevailing opinion is that an overall assessment has to be carried out to determine whether the case is particularly severe (additional: or particularly light). Particular consideration must be given to the circumstances that justify the existence of the standard examples.

According to the Federal Court of Justice: “For the decision of whether there is a particularly serious case, it depends on whether the entire crime scene after an overall assessment of all objective, subjective and the personality of the perpetrator-related circumstances that are inherent in the act or which are otherwise connected with it, deviate from the average of the cases that have been shown to occur from experience to such an extent that the application of the higher range of punishments appears necessary [...]. The essential guideline for the assessment are the statutory examples, which do not represent a conclusive catalog, but which have a yardstick. "Here," the indicative effect of the example can be invalidated by special mitigating circumstances that are so difficult in themselves or in their entirety weigh that the application of the penalty for particularly serious cases appears inappropriate ”.

evaluation

Because rule examples are more flexible than qualified offenses , the rule example technique has become increasingly popular with legislators. The E 1962 in particular served as a model here. Today, many of the formerly independent facts are only standard examples (such as rape in Section 177 (6 ) sentence 2 No. 1 of the Criminal Code as a standard example for a particularly serious case of sexual coercion / sexual assault).

However, the judge's wide scope for decision-making is also criticized. The possibly higher individual justice is offset by a lower influence of the legislature. Sometimes the rule example technology even sees a violation of the requirement of certainty . The Federal Constitutional Court rejected this in a decision as early as 1977 (BVerfGE 45, p. 363). However, in a more recent decision, the Federal Constitutional Court has banned the use of a car as a weapon in the sense of a standard example. The principle of certainty therefore also applies to rule examples. On the other hand, the specific examples of rules lead to greater legal certainty than particularly difficult / less difficult cases without examples that have always existed and still exist today. The existence of an (other) particularly serious case must be checked, taking into account the overall assessment of the act and the perpetrator's personality. Then, in the words of the Federal Constitutional Court: "It contributes to the certainty of the norm [...] if the legislature cites examples that provide additional information on the conditions under which a particularly severe case is usually present." Standard examples a compromise between the legal certainty of the qualifications and the individual justice of the unnamed aggravation / reduction of punishment reasons.

Applicability of the rules of the general part

Difficulties are sometimes caused by the fact that the legislature has introduced numerous rule examples in the special section of the Criminal Code, but has not standardized any general regulations for this technology. However, the rules of the general part of the Criminal Code are not based on rules for determining sentences, but on criminal offenses. However, since the rule examples are designed similar to the facts of the case, the question of the applicability of the rules of the general part arises.

Intent

It is generally recognized that the perpetrator must act deliberately , although Section 15 of the Criminal Code is not directly applicable. Also § 16 of the Criminal Code ( offense error ) is similarly applied.

attempt

For the start of the experiment, it depends on the immediate start of the basic offense.

On the other hand, problems that arise in the rule examples in connection with the attempt in the area of ​​sentencing are very controversial . The question arises as to whether and under what conditions someone can commit a criminal offense for attempting a particularly serious case, in particular in the form of attempting a rule example.

Since the prevailing opinion is that the rule examples are not just a matter of qualification, but rather pure rules on sentencing, one view generally rejects the attempt of rule example.

Another view regards the attempt of rule examples as unrestrictedly permissible insofar as the attempt of the rule example at the same time represents a direct start to the basic offense. Several case groups emerge here, which differ in whether the standard example was implemented or not.

  • If the basic offense is completed, but the rule example is only attempted, then it remains in and of itself a criminal liability because of the completed basic offense. A criminal liability for attempting a particularly serious case is ruled out, because the rule example can only develop its indicative effect for the existence of a particularly serious case of the basic offense if the rule example is fully implemented. Example: someone wants to steal money and crack a safe, but surprisingly it is unlocked. According to one view taken in the case law, however, the existence of an unnamed particularly serious case should be examined.
  • If the rule example is completed, but the basic offense is only attempted, the indicative effect of the rule example comes into play and the perpetrator is liable to prosecution in a particularly serious case for attempting the basic offense. Example: Somebody cracks a safe to steal money, but the safe is empty.
  • If neither the basic offense nor the rule example is completed, but the perpetrator has started to work on both, the prevailing opinion is that the indicative effect of the rule example does not apply. According to one opinion, there is only an attempt to commit the basic offense. Example: The perpetrator wants to break into the safe, but it is empty and open. According to one view taken in the case law, however, an unnamed, particularly serious case should come into question here.

Individual evidence

  1. ↑ Federal Court of Justice, decision of March 24, 2020, file number 4 StR 549/19 , paragraph (Rn.) 5–6 = NStZ-RR 2020, 211, beck-online.
  2. ↑ a b Kristian Kühl in Lackner / Kühl, 29th edition. 2018, StGB § 46 Rn. 11.
  3. ↑ a b Federal Constitutional Court, decision of September 1, 2008, file number 2 BvR 2238/07 = NJW 2008, 3627.
  4. ↑ a b c d Jörg Eisele , Bernd Heinrich : criminal law. General part for new students. Stuttgart, Verlag W. Kohlhammer 2017, p. 47.
  5. ↑ Jörg Eisele : The standard example method: offense or sentence solution? JA 2006, 309-316 (310).
  6. ↑ Federal Court of Justice, judgment of September 11, 2003, file number 4 StR 193/03 Rn. 3, NStZ 2004, 265, beck-online, quote: “If the prerequisites for a standard example are met, the 'regular penalty range' is determined according to the increased penalty range; An additional check is not required here to determine whether its use appears advisable in comparison to the average of the cases that experience has shown. "
  7. ↑ a b c Jörg Eisele, Bernd Heinrich: Criminal Law. General part for new students. Stuttgart, Verlag W. Kohlhammer 2017, p. 48.
  8. ↑ Federal Court of Justice, judgment of May 9, 2017, file number 1 StR 265/16 Rn. 53 = NZWiSt 2018, 379, beck-online.
  9. ^ Sven Kaltenbach: The determination of the legal penalty framework. JA 2020, 385–388 (387)
  10. ↑ Federal Court of Justice, judgment of February 28, 1979, file number 3 StR 24/79 , NJW 1979, 1666, beck-online.
  11. ↑ Federal Court of Justice, judgment of September 11, 2003, file number 4 StR 193/03 Rn. 4, NStZ 2004, 265, beck-online.
  12. ↑ Joachim Renzikowski in: Munich Commentary on the StGB, 3rd edition 2017, § 177 Rn. 142.
  13. ↑ Martin Heger in: Lackner / Kühl, 29th edition. 2018, StGB § 177 Rn. 1.
  14. ↑ a b Federal Constitutional Court, decision of June 21, 1977, file number 2 BvR 308/77 = NJW 1977, 1815, beck-online.
  15. ↑ Jörg Kinzig in: Schönke / Schröder Criminal Code, 30th edition 2019, before §§ 38 ff. Rn. 47.
  16. ↑ Detlev Sternberg-Lieben / Frank Schuster in: Schönke / Schröder Criminal Code, 30th edition 2019, § 15 Rn. 27.
  17. ↑ BGH, judgment of November 26th 1975, 3 StR 422/75 = NJW 1976, 381, beck-online
  18. ↑ BGH, April 28, 2020, file number 5 StR 15/20
  19. ↑ Bernd von Heintschel-Heinegg : Caution does not protect the thief from punishment or the veiled cigarette machine. YES 2020, 550
  20. ↑ Doctor in Legal Training , 1972, p. 515, p. 517 ff .; quoted from: Jörg Eisele, Bernd Heinrich: Strafrecht. General part for new students. Stuttgart, Verlag W. Kohlhammer 2017, p. 180.
  21. ↑ Volker Krey, Robert Esser: German criminal law. General part. 6th edition, Stuttgart, 2016, paragraph 1234; quoted from: Jörg Eisele, Bernd Heinrich: Strafrecht. General part for new students. Stuttgart, Verlag W. Kohlhammer 2017, p. 181.
  22. ↑ a b c d Jörg Eisele, Bernd Heinrich: criminal law. General part for new students. Stuttgart, Verlag W. Kohlhammer 2017, p. 181.
  23. ↑ BGH, decision of June 17, 1997, file number 5 StR 232/97 = NStZ-RR 1997, 293, beck-online
  24. ^ BGH, decision of August 22, 1984, file number 3 StR 209/84 , NStZ 1985, 217, beck-online
  25. ↑ OLG Düsseldorf, decision of July 7, 1983 - 2 Ss 254/83 - 140/83 II = NJW 1983, 2712, beck-online