Criminal liability loophole
The term criminal liability gap denotes an alleged regulatory gap in criminal law , which can lead to behavior that is subjectively or morally punishable from being punishable .
However, this is not an actual “loophole” in substantive law, as the constitutional prohibition of analogy in criminal law (Art. 103 (2) GG, Art. 7 ECHR) means that criminal law must by nature be “incomplete”. Unlike in other areas of law, a loophole in criminal law cannot be closed by analogies or teleological extensions to the detriment of a person concerned. An act committed within the alleged loophole thus remains unpunished.
Gaps in criminal liability can arise from technical or social developments that were not foreseen when the law was passed, but also from technical errors by the legislature. As a rule, gaps in criminal liability are closed by legislators through a change in the law if they are noticed. There is also sometimes talk of a criminal liability gap if an act cannot typically be proven in certain case groups, i.e. the offender remains exempt from punishment due to the principle of in dubio pro reo . Such gaps in criminal liability can be closed by, for example, extending criminal liability to preparatory acts that normally remain unpunished .
On the other hand, it is not referred to as a criminal liability loophole if behavior was deliberately not criminalized by the legislature.
Examples
The possibilities of new technologies and the resulting gaps in criminal liability can only be taken into account by the legislature with a delay.
The "electricity theft" was in Germany , since electricity is not a thing , not included in the offense of theft (today §§ 242 ff. StGB). The first "power thieves" after the advent of electrical energy were therefore acquitted by the Reich Court. The legislature finally added the offense of "withdrawal of electrical energy" (today § 248c StGB) into the criminal code.
Since damage to property (Section 303 of the Criminal Code) only relates to things (physical objects), the offense of data alteration (Section 303a of the Criminal Code) was also introduced.
Also one can fraud (§ 263 Penal Code) only by the illusion of natural persons are committed, but not by tricking machines or computers; therefore the offense of computer fraud ( § 263a StGB) had to be created.
Since (attempted) insurance fraud (as a case of fraud according to § 263 StGB) is often undetectable, this criminal liability gap was closed by the additional offense of insurance fraud (§ 265 StGB).
