Social adequacy
The social adequacy (including social adequacy ) is a principle in German criminal law plays a role. If a behavior outwardly fulfills all the characteristics of a statutory criminal offense , but is within the customary, historically developed order, the prevailing opinion is that there is no wrongful act.
The construction that belongs to the objective attribution is also related to the permitted risk , which, according to the prevailing opinion, also excludes the fact.
Background and details
Hans Welzel originally developed social adequacy as a justification for complicated cases in which a perpetrator fulfilled the criteria of a criminal law through certain behavior, but moved within the framework of the historically developed social order. Such case constellations occurred, for example, with dangerous actions in the area of traffic or dangerous technical systems. Welzel later changed his approach and went - like the vast opinion now - assuming that the social adequacy no longer justify the behavior, but is the starting point for certain offenses teleological limitation interpreted .
Examples
In the case of omission offenses, for example, it can be checked whether a certain previous behavior justifies a guarantor from the point of view of social adequacy .
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Or in the case of the unauthorized use of the federal service flag according to § 124 OWiG or one of these flags that can be confused with, such as B. the German federal flag with the federal coat of arms of Germany apart from the usually resulting punishment of an administrative offense if the use z. B. in the context of a major international event, such as a soccer world championship, is tolerated as a sign of the national fan base. Since this use is considered "socially adequate" and therefore not illegal, it is not punished as an administrative offense.
Current questions
In recent times, issues of social adequacy have also been raised and controversially discussed in connection with circumcision . The Cologne Regional Court decided in an appeal that the aspect of social adequacy would not exclude the criminal offense of Section 223 of the Criminal Code, even if a boy was properly circumcised . The consent of the parents does not justify the interference from § 1627 sentence 1 BGB . In this consideration played fundamental rights such as freedom of religion and the right to educate the parents on the one hand, the physical integrity of the child on the other side a role. Since a justification was therefore out of the question, the doctor was only exempt from punishment because he benefited from the excuse of the unavoidable error of prohibition under Section 17 of the Criminal Code , since he assumed the legality of his intervention.
Individual evidence
- ^ Karl Lackner, Criminal Code with Explanations, before Section 32, Rn 29, CH Beck, Munich 1997, p. 228
- ↑ Dreher / Tröndle, Criminal Code and ancillary laws, before Section 32, CH Beck, Munich 1988, p. 193
- ↑ "Federal coat of arms flag" as house decoration , Portal protokoll-inland.de 9. (Federal Ministry of the Interior), February 12, 2011 polling September 2016
- ↑ [1] (PDF file; 90 kB) Religious tradition and legal convention: The inadmissibility of religious male circumcision
