Unsuitable attempt
The unsuitable attempt is a term from the general part of German criminal law . This describes the attempt to commit a crime that is doomed to failure from the outset because the perpetrator either uses an unsuitable instrument (example: toy pistol ) or chooses an unsuitable object (example: "murder of a corpse"; " thief trap ") , or is an unqualified perpetrator for the offense he / she intends to commit (a non-public official who believes he is a public official accepts a bribe).
Although there is no objective risk, the Criminal Code states that not only the suitable attempt but also the unsuitable attempt is punishable. This is mainly based on a reverse conclusion ( Latin argumentum e contrario) from Section 23 Paragraph 3 StGB . However, the court can refrain from a penalty or mitigate it if the offender misjudged the unsuitability of his attempt due to gross misunderstanding. In the criminal law literature, the question is controversial as to whether the unsuitable attempt at an offense to cease and desist is also punishable.
The question of withdrawing from the unsuitable attempt is problematic . Since the attempt is doomed to failure from the outset, there is no need for the perpetrator to prevent its completion. His “serious endeavor” to prevent completion (cf. Section 24 (1), sentence 2 of the Criminal Code) must therefore have been objectively revealed before he recognized the unsuitability.
Differentiation from other legal figures
On the other hand, the superstitious attempt that is based on Section 23 (3) last half-sentence 1st old StGB is not punishable: The perpetrator thinks that an act can lead to success, although this behavior is ineffective for natural reasons and therefore an act cannot be completed could. Most of the time, there will be no intent in these cases, because the perpetrator merely "hopes" for success and is therefore outside of the social area relevant to criminal law. Examples of superstitious attempts are harmful magic ( voodoo ) or dead prayer . On the other hand, anyone who wants to shoot down an airplane with an air pistol only misunderstands the laws of physics and makes an unsuitable (i.e. punishable) attempt, albeit out of gross misunderstanding. In this case, the offender did not leave the social area covered by criminal law.
The delict is also not punishable : The perpetrator knows the whole situation, but mistakenly considers his permitted behavior to be punishable (case of the reverse error of prohibition ), e.g. B. he considers the appropriation of a (for him recognizable) ownerless thing to be theft .
See also
Individual evidence
- ^ Lackner / Kühl, Criminal Code, Commentary, 25th edition, Munich 2004 ( ISBN 3-406-52295-5 ), § 22 Rn. 12
- ^ Critical to this: Lackner / Kühl, Criminal Code, Commentary, 25th edition, Munich 2004 ( ISBN 3-406-52295-5 ), § 22 marginal no. 12.
- ↑ See in this regard RG 33, 321 ff (323)
