Subsumption error
The subsumption error is a term from German criminal law . It is a sub-case of the error of prohibition according to § 17 StGB . A perpetrator only needs to know the characteristics of a criminal offense according to its concept, not also according to its designation in the law; the error of subsumption therefore denotes the cases in which he erroneously believes that a characteristic which he essentially knows does not fall under the legal definition. The offender misinterprets a constituent element , does not correctly subsume it. He therefore assumes that his behavior is not covered by the norm and will not be punished. In fact, his intent is not ruled out, the result can be an error of prohibition.
Case constellations
At least four cases are conceivable in the error of the prohibition:
Error about the existence of a prohibition norm ("prohibition error")
Here either the perpetrator does not know the norm as a whole or he considers it null and void.
Example: The perpetrator does not know that there is a Sunday driving ban or thinks it is unconstitutional.
Error about the existence of a permit standard ("indirect prohibition error" or "permit standard error")
In this case, the perpetrator knows that his actions lead to a criminal offense, but he erroneously accepts an unrecognized reason for justification . Since the error is not directly related to a criminal standard (usual mistake of law), but to a justification (permissive rule), it is (also indirect mistake of law or permissive rule error does not permit offense error ) called.
Example: A civil servant accepts a gift in return, mistakenly assuming that it is justified under customary law.
Error about the scope of a prohibition norm ("Subsumption error in the narrower sense")
Such an error exists when the perpetrator interprets a prohibition norm too narrowly and does not include his behavior under it; therefore this is also called "subsumption error".
Example: The perpetrator assumes that he is not violating the Sunday driving ban because he believes that his hearse is not a truck and therefore does not fall under the driving ban. He thus knows all the circumstances of the incident, but interprets one element of the offense (that of the "truck") too narrowly.
Error about the scope of a license standard ("license subsumption error")
The perpetrator knows that his behavior violates a prohibition norm, but he considers his behavior to be permitted as an exception because he overestimates the scope of an actually existing reason for justification. The permit standard is therefore interpreted too broadly. Because of this, this error is also known as the “permission subscription error”.
Example: After the perpetrator has repulsed an attack by another person, he kicks the attacker who is lying on the ground, believing that he is justified in giving him a lesson.
Demarcation
It should be noted that these cases are also possible as reverse prohibition errors , in the case of the reverse subsumption error it is a delict .
