Factual error

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The event error ( lat . Ignorantia facti ), and Tatum state error , is one of the criminal error occurring forms. It is located at the level of the criminal offense . The legal treatment of its manifestations is primarily distinguished from the error of prohibition .


The prerequisite for a factual error is ignorance of an actually existing factual feature . In doing so, he deals with the deviation of the perception of the perpetrator from reality. Anyone who does not know a circumstance when committing an act that is part of the statutory offense of the criminal provision is not acting deliberately ( Section 16 (1) sentence 1 StGB ). This does not affect any criminal liability for negligence . A factual error is therefore present if the perpetrator objectively realizes the constituent elements of a criminal offense without his intentional act extending to it. The cognitive perpetrator horizon can be described as follows: "He does not know (exactly) what he is doing."

Delimitation: Just like the ignorance of an existing element of the offense, the perpetrator may also be wrongly assuming that the offense actually does not exist. Instead of imagining “too little”, he imagines “too much”. This is a so-called reverse facts wrong , considered inadequate attempt the attempt offense falls under.

A factual error exists, for example, if someone from the inn takes someone else's umbrella out of the umbrella stand because it is confusingly similar to their own. According to the objective criteria for a criminal offense in Section 242 of the Criminal Code, the prerequisites for a complete theft are met because the perpetrator has stolen someone else's movable property. Subjectively, however, he believed that the umbrella belonged to him and that he was not a stranger. The interested party is mistaken for a fact to which the criterion foreign concerns. In the case of a factual error, the objective and subjective factual situation differs (so-called incongruence ). Despite the implementation of the objective requirements of a criminal provision, the perpetrator is not punished for (willful) commission of the act according to Section 16 (1) sentence 1 of the Criminal Code. As a consequence, the ability to participate in accordance with Section 26 and Section 27 of the Criminal Code is also lacking , as there is no main offense that is eligible for participation.

Prohibition errors according to § 17 StGB are subject to an examination of their avoidability. This does not matter in the case of a factual error. The reason lies in the fact that the perpetrator just misunderstands the facts of the matter, so the appeal function of the offense does not even reach him. An allegation to the effect that he should have recognized the facts can at most lead to criminal liability for a negligent offense, whereby the prerequisite is that the law even provides for an offense of negligence. If the intent according to Section 16 (1) sentence 2 StGB is no longer applicable, the (avoidable) accusation of negligence remains unaffected. In the original case there is no negligent theft, but otherwise there would be, for example, negligent bodily harm.

The “knowledge” of the circumstances of the offense required by Section 16 of the Criminal Code does not require legal subsumption. It is sufficient for the perpetrator to recognize the natural meaning of an element of the offense. The mere deactivation of an object comes close to damage or destruction, but can constitute damage to property within the meaning of Section 303 of the German Criminal Code, such as opening car tire valves. The ignorance of the legal factuality of the act leads to irrelevance if the knowledge of the facts and the social significance is present. Normative elements are based on a parallel evaluation in the lay sphere. The perpetrator does not need to judge the strangeness of a thing (property situation), there is already deliberate action if the objective course of events essentially corresponds to what the perpetrator wanted to achieve at the time of the commission of the offense or was accepted with approval .

The error about "privileged elements of the offense", for example child homicide according to section 217 a, is still of criminal dogmatic importance. F. StGB. If, in this case, there is ignorance of the circumstances of the offense (easing the penalty), punishment is made from the area of ​​general homicides (manslaughter, according to Section 212 of the Criminal Code), but with the mitigation delegate of Section 16 (2) of the Criminal Code. The downside is also relevant from a criminal law point of view: the mistake about "criteria qualifying for success" leads to negligence if ignorance is made, and if the assumption is incorrect, it becomes an attempted criminality with regard to the offense qualified as success .

Special case: error in persona vel objecto


A special case of a factual error is the so-called error in persona vel objecto . The success of the crime occurs in these cases on the notified object, but this is actually different from the one presented. The perpetrator is wrong about the identity of the action object. In general, if the object of the crime is of equal value, the error will be irrelevant. The main features of the objective occurrence in the criminal assessment correspond to what the perpetrator believed should also happen. Ultimately, he is wrong only in the motive (motive error). In contrast, if the object of the crime is not of equal value, there is no intent, so that negligence at most can also be considered in these cases.

The delimitation criterion for the criminal legal relevance is thus hidden in the question of the (in) equivalence of the objects of crime. Here are two examples:

Example 1: T wants to shoot O and lies in wait for him on his way home at night. M passes and is mistaken for O by T. T shoots M.
Example 2: T wants to shoot O and ambushes him on his way home at night. Ms huge mastiff runs by. Since bushes obstruct his view, T thinks the dog is O. T shoots Ms. Mastiff.

In the first case, the objects of crime are equivalent. It is therefore an insignificant error about the circumstances of the crime, because T wanted to kill a person and has killed a person - namely the one he targeted (differentiation from the aberratio ictus, which is regularly punished ). T can therefore be punished for an intentional, accomplished act.

In the second case, there is a fundamental error about the circumstances of the crime, because the objects of the crime are not equivalent: T wanted to kill a person and killed a dog. So he was not acting willfully. In the case of unequal offenses, the attempt must be checked with regard to the intended and negligence with regard to the offense committed.

A special form of factual error is - depending on the opinion represented - the permission circumstance error. This relates in the same way as the factual error to circumstances (the facts), only to those of a justification sentence (e.g. self-defense , § 32 StGB and emergency , § 34 StGB).

In cases of indirect perpetration , the prevailing opinion is that the error in persona of the perpetrator is an aberratio ictus , especially when the “man behind” does not leave the “man in front” exercising any freedom of choice. If, on the other hand, the act of the person behind is characterized by the fact that he leaves the person in front to individualize the victim, it is assumed that the mistake of the person in front in the choice of motive is also irrelevant.


The question of how the perpetrator's error in persona affects incitement to an act is not answered uniformly. In this regard, the prevailing opinion is that this is also irrelevant for the instigator, whereas others differentiate according to whether there is a substantial or an insignificant deviation of the actual offense from the act presented. The consequence is that a substantial deviation leads to an aberratio ictus of the instigator. It is at issue here whether incitement to attempt criminal liability or attempted incitement is to be affirmed. An insignificant discrepancy between the actual and the presented crime is, however, considered insignificant.

See also


Web links

Individual evidence

  1. BGHZ 4, 254.
  2. ^ Karl Lackner / Kristian Kühl : Criminal Code, Commentary. 25th edition, Munich 2004 ( ISBN 3-406-52295-5 ), § 22 Rn. 12.
  3. Dreher / Tröndle : Criminal Code and ancillary laws , CH Beck, Munich 1995, § 16 Rnr. 6th