Reasons for exclusion and suspension
In German criminal law, grounds for exclusion and suspension of punishment are understood to be the personal circumstances of an offender that lead to his impunity. Reasons for exclusion from punishment already exist at the time of the offense, while grounds for suspension of punishment only arise after the offense.
The two reasons for annulment can only exonerate those offenders or participants who are personally present in accordance with Section 28 (2) StGB . Since the criminal liability of the participant remains as unaffected as the illegality of the act, self-defense against them is still permissible.
background
The criminal liability of behavior is usually justified by the factual injustice and the guilt of the perpetrator. In exceptional cases, however, punishment is only possible if other conditions are met. In addition to the objective conditions of criminality strictly to personal and lying beyond injustice and guilt aspects either strafausschließend or criminal reversing act.
Reasons for exclusion
Reasons for exclusion from punishment are circumstances that must have already existed when the offense was committed and lead to impunity from the outset. This privilege can be motivated in different ways. While the legislature takes certain conflict situations into consideration and wants to take account of the lower level of guilt, other reasons for exclusion are based on criminal policy considerations.
The reasons for personal exclusion from punishment include the young age of siblings and descendants when they have sex between relatives according to Section 173 (3) StGB, the indemnity of Members according to Article 46 of the Basic Law , Section 36 and participation in predicate offenses in the case of favoritism according to Section 257 and obstruction of punishment according to § 258 StGB .
Grounds for suspension
The grounds for waiver of punishment are circumstances that only occur after the offense has been committed and lead to retrospectively lifting the criminal liability that was initially established. Such factors include the active repentance gem. 330b StGB , the withdrawal from the attempt according to 24 StGB as well as an attempt to participate in a crime according to Section 31 of the Criminal Code.
Error problem
The mistake about a personal reason for exclusion or suspension is generally unanimously regarded as irrelevant. This applies both to the existence of such a reason and to its legal limits. Scientific discussions occasionally arise with regard to the question of whether the mistake of the perpetrator about the existence of the actual requirements for reasons of exclusion or annulment should be treated differently. According to the prevailing opinion, however, this aspect does not lead to any other result either. However, parts of the literature make do with an analogous application of Section 35 (2) StGB, at least when an emergency-like motivational situation can be attested.
Annex
In exceptional cases , a personal reason for exclusion or suspension of punishment is possible under German law in accordance with § 153b StPO and, in accordance with § 60 StGB, a “waiver of punishment” within the framework of the dogmatics of Poena naturalis .
Individual evidence
- ↑ Johannes Wessels , Criminal Law, General Part, The Criminal Offense and its Structure, § 12 Personal Exclusion and Suspension of Penalty Reasons, CF Müller Juristischer Verlag, Heidelberg 1986, p. 136
- ↑ Reasons for exclusion (cancellation), in: Creifelds, Rechtswörtbuch, CH Beck, Munich 2011, p. 1141
- ↑ Johannes Wessels, Criminal Law, General Part, The Crime and its Structure, § 12 Personal Exclusion and Cancellation Reasons, CF Müller Juristischer Verlag, Heidelberg 1986, p. 137
- ↑ Dreher / Tröndle , Criminal Code and ancillary laws , CH Beck, Munich 1995, § 16 Rnr. 31.
- ^ Tonio Walter : The core of criminal law, p. 206. The connection between § 60 StGB and Poena naturalis
