Awareness of injustice
In German criminal law, awareness of injustice , as the possibly only insecure awareness of possibly doing something legally forbidden, is a prerequisite for criminal liability of behavior, whereby awareness of injustice does not necessarily require knowledge of the criminal liability of the behavior or the amount of the sanction, but at least an uncertain awareness of the act .
The perpetrator's view that his behavior is merely morally reprehensible is not sufficient ; on the other hand, knowledge of the criminal liability or even the exact subsumption under the correct facts is not necessary . Even an erroneous awareness of injustice cannot justify a criminal injustice.
Reference point
The awareness of wrongdoing does not exist in the abstract, but rather relates to the individual ought arrangements of the prohibition or mandatory norm. The awareness of wrongdoing can therefore be divisible when different offenses are committed, so that it exists for one offense but not for the other. However, it is controversial whether this also applies to the realization of qualifications.
negligence
A negligent agent does not want to consciously violate the legal system. If all of his mental powers had been strained, however, he could have recognized that his actions could have been dangerous for a protected legal asset. In the concrete factual situation, the perpetrator should have been able to acquire the awareness of the act and thus of the wrongdoing. In the case of offenses of negligence, a distinction must be made between unconscious offenses - no recognition of a possible realization of the facts by disregarding the duties of care that someone is capable and obliged to under the circumstances and their personal circumstances - and deliberate negligence offenses in which the realization of the facts is generally considered possible by the (later) perpetrator but he nevertheless acts in a reproachable breach of duty, trusting that the risk he has seen theoretically but believed to be manageable will not occur. In the case of deliberate negligence, the offender must be aware of the illegality of the perceived threat to the legal interest.
Awareness of injustice and insight
There is no clear distinction between the questions of awareness of injustice and the ability to discern according to § 3 JGG. Insofar as the juvenile perpetrator could have gained insight into the wrongdoing, it is a case of insight according to § 3 JGG.
Intentional or guilty characteristic?
According to the almost unanimous view in teaching and, above all, case law, the awareness of injustice is to be classified as a general characteristic of guilt . Its absence therefore results in a mistake in the prohibition within the meaning of Section 17 of the Criminal Code and can thus lead to impunity for lack of guilt if the unjust doubts could not be resolved.
According to the opposing view (intent theory) is the wrongdoing as intentional component to locate. Its absence therefore already constitutes a factual error according to § 16 Paragraph 1 Sentence 1 StGB, so that in connection with § 15 StGB there is no criminal liability. Today this doctrine has the wording of § 17 sentence 1 StGB against it. The teleological, systematic and historical arguments of interpretation also speak against it.
Individual evidence
- ↑ constant case law (see only BGHSt 4, 4)
- ↑ consistent case law (see only BGHSt 10, 35)
- ↑ Jurisprudence supports this: BGHSt 42, 130; Literature rejects this: z. B. Roxin General Part of Criminal Law I, para. 807, 4th edition, Beck, Munich 2006
- ↑ Walter, Michael / Kubink, Michael, § 3 JGG - § 17 StGB: same factual structure? in: Goltdammer's Archive 1996, pp. 51–59; a. A. Diemer, Herbert § 3 marginal no. 4 and 8 in: Diemer, Herbert / Schoreit, Armin / Sonnen, Bernd-Rüdeger, Juvenile Courts Act, 4th edition, CF Müller, Heidelberg 2002
- ↑ z. B. Tröndle, Herbert; Fischer, Thomas, Criminal Code and Ancillary Laws, 54th edition, Beck, Munich 2007, § 17 Rn. 2
- ↑ BGHSt - GrS - 2, 194
- ^ Roxin, General Part of Criminal Law I, para. 807 u. a., 4th edition, Beck, Munich 2006
- ↑ represent z. B. von Schmidhäuser JZ 1979, 365
