Omission offense

from Wikipedia, the free encyclopedia
This article or paragraph presents the situation in Germany . Help us to describe the situation in other countries.

An omission offense is an offense that makes failure to act a criminal offense . In contrast to committing a crime , you are punished for not doing something. The common constituent feature of all omissions offenses is that the person who remained inactive must have had an opportunity to act.

A distinction is made between real and spurious omission offenses.

Real omission offenses

Genuine omission offenses are already laid out as such in the wording of the offense. The core of the factual content is an imperative to act . The act of offense consists of failure to perform a required action. A guarantor in the sense of § 13 StGB is not required, since everyone is obliged to act.

On the other hand, taking the required action means that it is physically possible for the person obliged to provide assistance. Taking action must also be necessary and reasonable.

German criminal law knows only a few facts of this kind:

Spurious omissions

Almost every criminal offense formulated as a commission can also be carried out through omission. These are the so-called “bogus omission offenses” within the meaning of § 13 StGB . The prerequisite is that the behavior complained of action quality , and in that the sub-passage ends a so-called guarantee duty , d. H. a legal obligation to act. In essence, this violates a prohibition standard. In the case of spurious omission offenses, it is a question of genuine special offenses and mandatory offenses .

If a punishable "positive act" of the perpetrator has already become effective, the focus of accusation lies in active action and not in failure to take a required and required action. This demarcation can cause difficulties, as a classic school case shows: A first pulls daughter B, who has fallen into a well, up with the rope. Then he lets B down again and leaves her (subject to punishment) to her fate. Alternatively, the case: A does not pull up the rope from the start. B cannot be saved. While in the latter variant an omission will have to be affirmed, in the previous variant it is crucial which behavior is the focus of the criminally relevant behavior and which normative value is assigned to it (social sense of action).

The omission is fulfilled when the actual success occurs (e.g. death under Section 212 StGB), whereby the action objectively required to avert success is not carried out, although there is a physically real possibility of averting success and also a special obligation (so-called guarantor position , § 13 StGB), be it from the law (see above), close cohabitation, actual assumption of protective duties , responsibility for sources of danger (duty of safety ), duty of supervision or ingerenz (contrary to duty dangerous previous behavior).

Causality is required to link the factual success with the failure to make a charge . This takes place in reverse of the conditio-sine-qua-non formula developed from the equivalence theory by hypothetical testing in such a way that the possible and required action for the perpetrator cannot be considered without the concrete success with a probability bordering on certainty being lost . In order to contain the escalating effects of the equivalence approach, the objective attributability must be examined. Is unreasonable for example, a self-endangerment .

Subjectively, the perpetrator has knowledge of all objective elements of the offense as well as the position of the guarantor and the possibility of averting success. Nevertheless, he wants to remain inactive.

With the factual position of a guarantor, the obligation to guarantee corresponds at the level of illegality . Errors about the guarantee obligation are to be assigned to the prohibition error according to § 17 StGB. Another problem that can arise is the existence of a justifying conflict of duties , which occurs when two or more duties of equal priority exist, but only one can and will be fulfilled. Insofar as the legal interests are equally important, a justified right to choose remains. But it is different if the value of goods is unequal; here the higher legal value is to be protected. Otherwise the decision is unlawful.

Particularities of negligent fraudulent omission offenses

The criminal law only provides for a criminal liability for negligent behavior according to § 15 StGB if this is expressly threatened with a penalty.

A classic case is Section 229 of the Criminal Code ( negligent bodily harm ). In cases of negligently committed spurious omission cases, the causal success occurs because the party obliged to act fails to take the objectively required action that is possible and objectively necessary to avert success. In the case of this type of offense, an offense is attributed if the breach of duty of care violates the resulting obligations within the framework of a guarantor position. In the annex of the facts of the matter, objective conditions of criminal liability sometimes play a role, which can exclude a breach of the guarantor obligation.

literature

Web links

@1@ 2Template: Toter Link / www.juraquick.de( Page no longer available , search in web archives: Small online crash course on omission offenses ) (German law).