Risk increase doctrine
The doctrine of increasing risk is a minor opinion in German criminal law , according to which it is sufficient for the objective attributability of the action with regard to success that the behavior has increased the probability of success.
Problem
The prerequisites for criminal liability in German criminal law are that human behavior has become the cause of a certain "success" (e.g. dead person in manslaughter).
To assess the conditions of causality which is equivalence theory prevalent. Causal in the sense of the equivalence theory is any condition that cannot be ignored without the success in its concrete form being lost ( conditio-sine-qua-non formula ). However, this naturalistic approach leads to an almost endless chain of causality. In order to limit this, the institute of objective attribution was developed in the literature . The jurisprudence, on the other hand, mostly falls back on a mistake about the course of events, thus shifting the problem into the subjective area.
In the context of objective attribution, the question arises whether the success can be seen as the work of the perpetrator. The prerequisite is that the behavior of the perpetrator has created a legally disapproved danger and that success is then also realized in this.
content
The doctrine of increasing risk is mostly discussed in the area of non- compliance, i.e. with the question of whether the risk created has just been realized in the success that has occurred. According to the theory of increasing risk, it is sufficient for the objective attribution of success that the behavior has increased the probability of success. On the other hand, the prevailing view does not consider objective attribution to be given, provided that the occurrence of success cannot be ruled out even with lawful alternative behavior on the part of the perpetrator.
example
A cyclist is run over by a truck and is fatally injured, with the truck driver maintaining too little side clearance. Because the cyclist was very drunk, it cannot be ruled out that the accident would have occurred even if the truck driver had behaved properly (serpentine driving!).
In contrast to the prevailing view, the doctrine of increasing risk affirms the objective attribution of improper driving style to the success of death, since in any case the probability of the accident was increased by the driving error. So a penalty for negligent homicide would come into consideration.
On the contrary, the Federal Court of Justice : Even with the correct driving style (lawful alternative behavior), the cyclist would have been killed with a probability bordering on certainty because he was unfit to drive. In dubio pro reo (in case of doubt for the accused) the driver would have to be acquitted for lack of accountability.
criticism
The doctrine of increasing risk is rejected by the prevailing opinion, which follows the avoidance theory , because it restricts the principle in dubio pro reo too much and thus ultimately reinterprets an infringement offense into a hazard offense.
Individual evidence
- ↑ BGH, decision of 25 September 1957 gG - 4 StR 354/57 = BGHSt 11, 1
