Unauthorized use of a vehicle
The unauthorized use of a vehicle is a criminal offense in the German criminal code . It is regulated in § 248b StGB . The provision is an exception to the general impunity of presumption of use ( furtum usus ) in German law.
Offense
(1) Anyone who uses a motor vehicle or a bicycle against the will of the person entitled is punished with imprisonment for up to three years or with a fine if the act is not threatened with a heavier penalty in other regulations.
(2) The attempt is punishable.
(3) The offense will only be prosecuted upon request.
(4) Motor vehicles in the sense of this provision are vehicles that are moved by machine power, land vehicles only insofar as they are not tied to railroad tracks.
This fact was added to the German Criminal Code in 1953. Before that, the (emergency) ordinance of the Reich President against unauthorized use of motor vehicles and bicycles of October 20, 1932 applied. According to established prevailing opinion, the right to use a vehicle should be protected .
Constituent elements
Suitable objects of crime are motor vehicles as defined in Paragraph 4 (namely cars, motorcycles, airplanes, ships, but not trams, car trailers, barges without their own drive, etc. [Lackner / Kühl, Commentary StGB 25th ed.]), And Bicycles, including tricycles, mopeds, mopeds or bicycles with auxiliary engines are to be counted among the motor vehicles.
The offense is taking into use, which does not begin when the vehicle is put into operation, but rather when it is used to move. A special change of location does not necessarily have to take place; one view is that it is enough to practice parking. On the other hand, it is disputed whether the unauthorized person can be limited to the type and duration (according to case law).
The offense does not require a change of custody. The consumption of fuel and engine power is not enough, however, to make a theft (Section 242 of the Criminal Code) or the withdrawal of electrical energy an offense instead of the offense of Section 248b .
However, the prerequisite is that the use is directed against the will of the authorized person (the owner). If the permission to use is revoked during the use, the exclusion of the facts remains in place: the use is then not considered a fact.
Resolution is required. It also extends to the characteristic of the will of the person entitled. Errors consequently exclude intent according to § 16 StGB as a factual error .
particularities
If the vehicle is used forcefully against the owner or authorized user, this is a case of extortion according to § 253 StGB. If an intent to assassinate can be determined, a robbery according to §§ 249 ff. StGB or a predatory extortion according to § 255 StGB is given instead.
attempt
The attempt is punishable. It is sufficient to break open the lock to start using it if the perpetrator wants to move around with the vehicle. An attempt is also given if the perpetrator shakes the front wheel to see whether the steering wheel lock is engaged or gets into the vehicle to start it.
Completion / completion
As soon as the vehicle is started to drive, the act is complete and continues until the vehicle is no longer in use.
Application offense
The offense is an absolute application offense . Pursuant to Section 77d StGB, only owners and beneficial owners are entitled to apply. The application period begins when the vehicle is regained.
Competitions
The unauthorized use of vehicles is subordinate to all other acts, unless the theft constellation as described above is involved . If further criminal offenses are realized during the unauthorized use, then there is a unit of offense according to § 52 StGB.
Individual evidence
- ↑ RGBl. I p. 496
- ↑ BGHSt 14, 386, 388 ( Memento of the original from September 19, 2008 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. mwN
- ↑ BGHSt 26, 104
- ↑ BGHSt 7, 316
- ↑ RG 68, 217; Düsseldorf NStZ 85, 413
- ↑ RG 43, 287
