Failure to provide assistance

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The failure to provide assistance is an offense of criminal law in Germany and in § 323c StGB regulated.

history

Originally, the failure to provide assistance was merely a violation , which was stated in Section 360 No. 10 StGB a. F. was regulated and still goes back to the Napoleonic Code pénal . The National Socialist legislature intensified the criminal offense with the criminal law reform of June 28, 1935, citing "the change that occurred in the National Socialist state in the views of the individual's duties towards the national community and the other national comrades " by classifying the criminal offense as an offense and in § 330c StGB a. F. newly standardized. The federal legislature retained the stricter version from the time of National Socialism and merely shifted the norm to today's paragraph § 323c StGB.

Paragraph 2 ("Disability of helping persons") was added to § 323c StGB by law of 23 May 2017 as a reaction to the increasing number of onlookers at accident sites (so-called "gawkers"). Failure to provide assistance is thereby standardized in paragraph 1 of Section 323c of the Criminal Code.

Penalty

According to the prevailing opinion , the offense of failure to provide assistance only serves to protect the individual legal interests of those in need.

Offense

Anyone who "does not provide help in the event of an accident or common danger or need, although this is necessary and can be expected of him under the circumstances, in particular without significant personal risk and without violating other important obligations", is liable to prosecution .

An accident is a condition that represents an immediate danger to life and limb or to important property. What matters is that immediate action is required. In addition to accidents in the classic sense, natural forces, illnesses and willful crimes by third parties also belong to the accidents, but not the normal birth. For a long time it was controversial in case law whether a suicide is an accident; this was affirmed in a decision of principle in 1954 by the Great Senate for Criminal Matters of the Federal Court of Justice . In jurisprudence this is doubted at least for freely responsible suicide. The view of the jurisprudence sometimes leads to great difficulties in the delimitation of the - in principle unpunished - assisted suicide, which the jurisprudence tries to solve by an assumed unreasonableness of the assistance.

Failure to provide assistance is a genuine omission offense, in which the offender's failure to provide assistance (failure to provide assistance) is sufficient to fulfill the offense. The deed is completed as soon as the perpetrator announces or confirms his decision not to help. The success of the aid does not matter, so that the perpetrator is exempt from criminal liability even if the aid was ultimately unsuccessful. In contrast to the fraudulent omission offenses, the perpetrator is not exempt from criminal liability if the success of the crime was averted by another side (e.g. another helper). Since the delay in providing assistance is sufficient to complete the deed, there is no trial stage, so an attempted failure to provide assistance is not possible.

If help is unreasonable for the perpetrator, in particular not possible without significant personal risk and without breaching other important duties, the prevailing opinion is that one of the elements of the offense is not present and the perpetrator acts with impunity. The considerable personal dangers include not only the legal interests of life, limb and freedom, but B. also considerable loss of assets. However, minor inconveniences are not enough. The reasonableness is to be determined by weighing up the conflicting interests. The interests to be saved must outweigh the endangered interests of the helper.

The norm is not undisputed in the prevailing doctrine, some consider the norm to be unconstitutional because of its lack of certainty .

Failure to provide assistance takes precedence over committing offenses and all deliberate fraudulent omission offenses. In the case of negligent fraudulent omission offenses, the offense is committed, as does unauthorized removal from the scene of the accident . Failure to provide assistance also takes precedence over failure to report planned criminal offenses .

Case numbers

In 2003, 81 people were convicted of failure to provide assistance. In practice, however, the norm is far more important, as it often competes with other criminal offenses.

literature

  • Maurach / Schroeder / Maiwald: Criminal law: special part. Offenses against community values. CF Müller Verlag, Heidelberg 2005, ISBN 381143344X , p. 51ff

Individual evidence

  1. ↑ Andreas Popp: § 323 Rn. 1. In: Heinrich Wilhelm Laufhütte, Ruth Rissing-van Saan (Ed.): Leipzig Commentary on the Criminal Code. Vol. 12: §§ 323a to 330d . 12th edition. De Gruyter, Berlin 2019, ISBN 978-3-11-026226-1 .
  2. ↑ BGBl. 2017 I p. 1226
  3. ^ Michael Kubiciel: Law against "Gaffer" - The criminal liability of the handicap of helping persons according to § 323c Abs. 2 StGB . In: juris PraxisReport Criminal Law 11/2017 Note 1.
  4. ^ Georg Freund in: Munich Commentary on the StGB, 3rd edition 2019, § 323c Rn. 2, 4
  5. ↑ Bernd Hecker in: Schönke / Schröder, Criminal Code, 30th edition 2019, § 323c Rn. 1
  6. ^ BGH, decision of March 10, 1954, file number GSSt 4/53 .
  7. ↑ Kristian Kühl in: Lackner / Kühl, 29th edition 2018, StGB § 323c margin number (marginal number) 2.
  8. ↑ Bernd Hecker in: Schönke / Schröder Criminal Code, 30th edition 2019 StGB § 323c Rn. 8th.
  9. ↑ BGH, judgment of July 4, 1984, file number 3 StR 96/84 .
  10. ↑ BGH, judgment of July 3, 2019, file number 5 StR 132/18 Rn. 46 ff.
  11. ↑ Bernd Hecker in: Schönke / Schröder Criminal Code, 30th edition 2019 StGB § 323c Rn. 1.
  12. ↑ Bernd Hecker in: Schönke / Schröder Criminal Code, 30th edition 2019 StGB § 323c Rn. 26th
  13. ^ BGH, judgment of April 8, 1960, file number 4 StR 2/60 = NJW 1960, 1261, beck-online.
  14. ↑ Bernd Hecker in: Schönke / Schröder Criminal Code, 30th edition 2019 StGB § 323c Rn. 18th
  15. ^ BGH, decision of March 2, 1962, file number 4 StR 355/61 = BGHSt 17, 166.
  16. ↑ BGH, judgment of May 14, 2013, file number VI ZR 255/11 Rn. 16 = NJW 2014, 64, beck-online.
  17. ↑ Georg Freund in: Munich Commentary on the StGB, 3rd edition 2019, StGB § 323c Rn. 95.
  18. ↑ a b Bernd Hecker in: Schönke / Schröder Criminal Code, 30th edition 2019 StGB § 323c Rn. 30th
  19. ↑ a b Bernd Hecker in: Schönke / Schröder Criminal Code, 30th edition 2019 StGB § 323c Rn. 29