Assassination
Criminal rule is a term from criminal law doctrine , which is used to differentiate between perpetration and participation . It is about the question of who is the central figure of the concrete action and thus the perpetrator (and not just instigator or assistant) according to § 25 StGB .
Problems arise with the distinction between indirect perpetration and incitement and complicity and aiding and abetting . Depending on which of the forms of participation is chosen, the criminal liability of those involved varies.
The BGH previously represented the so-called animus theory . According to this, the perpetrator is whoever has the will of the perpetrator (so-called animus auctoris ), and a participant who has the will to participate (so-called animus socii ). In contrast to the animus theory , the demarcation according to the doctrine of the rule of law is not mainly based on the subjective characteristics of the perpetrator, but mainly according to his objective characteristics. Control over the act, making it the the intent captured "in-the-hands-holding" of the factual events or carried by the will of dominant control of Tatablaufs. This is the case with the person who can inhibit or allow the act to proceed according to his will.
The following forms of criminal rule are distinguished:
- The rulership of the immediate perpetrator (rule of action ) = immediate perpetrator
- = Tather rule is possessed by someone who objectively masters the "whether" and "how" of the realization of the facts and has a corresponding will, thus holding the crime in his hands.
- Example: A steals O's bike
- = Tather rule is possessed by someone who objectively masters the "whether" and "how" of the realization of the facts and has a corresponding will, thus holding the crime in his hands.
- The rulership of the man behind over the man in front through outstanding knowledge ( mastery of knowledge ) = indirect perpetration
- = The man behind consciously exploits a "defect" that the investigator has - for example, that he does not act deliberately with regard to the realization of the facts (in the example below, with regard to bodily harm to O).
- Example: A says to B: "Here an unloaded rifle. Shoot O and give him a real shock." In reality the gun is loaded, but the B is not aware of this. He trusts A and injures O with the shot. The A had a rulership over B, so A's participation function is eliminated - he is an indirect perpetrator.
- = The man behind consciously exploits a "defect" that the investigator has - for example, that he does not act deliberately with regard to the realization of the facts (in the example below, with regard to bodily harm to O).
- The rulership of the man behind over the man in front through a superior will (rule of will ) = indirect perpetration
- = The man in front is particularly dependent on the man behind. This can be the case, for example, with someone who is incapacitated or forced.
- Example: The spiritual mentor A tells his psychologically unstable pupil B, who is completely dependent on A, to kill O. B does this without objection. By taking advantage of his inability to act, A had control of will over B and was therefore an indirect perpetrator.
- = The man in front is particularly dependent on the man behind. This can be the case, for example, with someone who is incapacitated or forced.
- Rule of the perpetrators through an organizational hierarchy ( organizational rule ) = indirect perpetrators
- = The person in front is dependent on a strongly organized hierarchy ( Mafia , military, etc.) and has to "bow" to it.
- Example: A is a “ mafia boss ” who orders his subordinate B to kill T. B does this out of fear for his life and his position in the hierarchy. A is to be punished as an indirect perpetrator.
- = The person in front is dependent on a strongly organized hierarchy ( Mafia , military, etc.) and has to "bow" to it.
- The rulership of the accomplices who share the labor ( functional rulership ) = complicity
- = The perpetrators commit the offense on the basis of a joint crime plan (which can also be caught situationally - i.e. spontaneously -) together and contribute to the realization of the facts by sharing their own actions, without which the success of the crime would not have been possible in this way.
- Example: A holds the T so that B can kill him. If A did not hold T, T could flee and B could not commit manslaughter. A and B are to be punished as accomplices.
- = The perpetrators commit the offense on the basis of a joint crime plan (which can also be caught situationally - i.e. spontaneously -) together and contribute to the realization of the facts by sharing their own actions, without which the success of the crime would not have been possible in this way.
