Ignorantia legis non excusat

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Ignorantia legis non excusat , sometimes also Ignorantia iuris non excusat or Ignorantia iuris neminem excusat is a legal principle from Roman law , which is known in the German-speaking world as the popular saying “ignorance does not protect against punishment”.

Germany

General

This popular wisdom can be found in German criminal law in the case of avoidable error of prohibition and can also play a role in cases of negligence.

In contrast to an error about the actual circumstances (“ ignorantia facti ”), a legal error, in particular a prohibition error, only excludes the guilt of a perpetrator under German law if the error could not be avoided ( Section 17 StGB ).

Both principles concern the doctrine of error in criminal law and administrative offenses , which is largely identical in both areas of law.

Ignorance refers to the perpetrator's lack of or inadequate knowledge of individual elements of the offense which, as a legal consequence, lead to punishment. According to the legal definition of Section 16 of the Criminal Code and Section 11 of the OWiG, someone who does not know even one single circumstance that is part of the statutory offense does not act deliberately . This also applies if the error is due to the perpetrator acting in thoughtlessness. Linguistically, the term “error” is misleading, because the so-called factual error is only about the positive knowledge of certain factual features, while the prohibition error is simply about the awareness of doing something forbidden; a positive, contrary idea of ​​the constituent element of what constitutes an error is not required.

The factual error excludes intent, but allows penalization of negligent behavior, as far as statutory provisions also make negligent behavior a criminal offense or a threat of fines. The error of the prohibition, however, does not exclude intent, but takes into account an excusable lack of awareness of wrongdoing, which can lead to impunity if it was unavoidable. The awareness that you are doing something illegal does not require that you are specifically familiar with every prohibitive norm. Rather, it is sufficient to be aware that the act is an injustice of the type described in the relevant standard. So, on the one hand, positive knowledge of the law is not necessary, but on the other hand, it is not sufficient to assess an action as socially adverse or harmful or morally reprehensible.

German legal history

Some states of the German Confederation had included a provision in their penal codes according to which ignorance of the criminal law does not exclude criminal liability (e.g. Braunschweig 1840 in Section 31, Hesse 1841 in Art 41, Sachsen-Altenburg 1841 in Art 68, Baden 1845 in Section 73, the Thuringia in 1852 in Art 63 (3), Austria in 1852 in Section 3, Saxony in 1855 in Art 95 (2). In 1848, Bavaria repealed the opposite provision of the 1813 Criminal Code (Article 39). It was based on the teaching of Anselm von Feuerbach , which still required knowledge of the criminal law for its effectiveness. When the Prussian Penal Code of 1851 was created, a corresponding provision was deliberately refrained from, because "the ineffectiveness of legal error is already common law" and in the Introductory Act of April 14, 1851, Title 20 Part II of the General Land Law with its provisions on the effect the ignorance of the criminal laws abolished.

Criminal law

Today's doctrine of error under criminal law assumes that a criminal offense committed in error cannot be punished or will be punished more leniently if the error could have been avoided (§§ 16, 17 StGB). When committing the act, the perpetrator must lack the insight that he is doing injustice. If there is no awareness of wrongdoing, there is a mistake in the prohibition. The error can be based on a lack of knowledge of the law or an overly narrow interpretation of the norm (so-called subsumption error as a sub-form of the prohibition error). This error must be inevitable. An unavoidable error of prohibition is assumed in the case of unresolved legal questions that are not answered uniformly in the legal literature, especially if the legal situation as a whole is very unclear or if expert legal advice does not lead to a clear result. An error can be avoided if the perpetrator negligently unlawfully realizes an offense by objectively violating a duty of care and by this breach of duty causes a violation of legal interests that he could foresee based on his subjective knowledge and skills. An avoidable error leads to a mitigation of sentences according to § 49 Abs. 1 StGB. In accordance with Section 16 (1) Sentence 1 StGB, a factual error excludes punishment for willful commission, because intent requires knowledge of all the circumstances belonging to the statutory offense.

The awareness of injustice is according to the guilt theory - which follows the BGH - an independent guilt element. According to § 17 sentence 1 StGB, only an unavoidable error of prohibition leads to the elimination of guilt. To this end, the perpetrator is required to be unable to recognize the prohibition of his behavior despite a due effort of conscience. If it can be avoided, the court is free to choose whether to mitigate the sentence (Section 17 sentence 2 StGB). This provision is the only exception to the old German popular wisdom and is rarely used. The sentence adopted by the Reichsgericht that the error about the criminal law does not exclude criminal liability, thus leads to punishment in the event of an error in the prohibition through no fault of one's own, although an accusation of guilt against the perpetrator cannot be made and thus to a violation of the principle of all punishments that punishment presupposes guilt. What is right and wrong can no longer be taken for granted. This opens up the possibility of an error in the prohibition, including an error through no fault of one's own.

Administrative offense law

In the law of administrative offenses , too , error (ignorance) does not protect against punishment with a fine. If the offender lacks the awareness of wrongdoing, he is in the error of prohibition. According to Section 11 of the OWiG, there is an error not only in the case of a wrong idea, but also in the absence of any idea. Improper behavior will only not be punished due to the lack of accusation if the error could not be avoided. Improper behavior can be avoided if, while straining all intellectual powers of knowledge and moral values, prohibition and permissiveness can be demarcated. It depends on whether the perpetrator could have come to the injustice according to his individual abilities and according to objectively required care (if necessary through examination and inquiry).

The law on administrative offenses does not contain any mitigation provision corresponding to Section 17 (2) StGB. In the event of an avoidable error in the prohibition, however, the deliberate payment of fines is to be assessed more leniently. Anyone who acts without awareness of injustice does not behave accusingly if he could not avoid the lack of insight into injustice (Section 11 (2) OWiG). There is no awareness of wrongdoing if the perpetrator does not know the norm of the fine. Anyone who, in unavoidable ignorance, does something unauthorized acts without any awareness of wrongdoing and is therefore generally not reproachable. If the offender lacks any awareness of wrongdoing, he is in error of prohibition. If the error in the prohibition could not be avoided, the act will not be prosecuted due to the fact that it cannot be blamed. However, the law assumes that in the case of a discerning perpetrator ( Section 12 OWiG), the presence of awareness of wrongdoing is the rule and its absence is the exception.

Austria

The old legal principle "ignorantia legis non excusat" also applies in Austria, because in § 2 of the ABGB it is made clear: "As soon as a law has been properly made known, nobody can excuse himself that he has not become aware of it." This provision originally wanted to establish the irrefutable presumption of fault for ignorance of a legal provision. In the meantime one has moved away from the interpretation as irrefutable fiction of § 2 ABGB and interprets the provision in such a way that no one can apologize for ignorance of the law alone. The application of a valid law does not depend on the knowledge of the content of the law by the addressees of the norm. In the earlier Austrian criminal law (1852-1945) it was regulated that nobody can apologize for ignorance of the current law (§§ 3, 233 ÖStG).

The Austrian penal code also knows the error of prohibition . It is standardized as a legal error in § 9 StGB.

Switzerland

In Switzerland, the civil law principle “ignorance of law harms” ( ignorantia iuris nocet ) applies . If you do not know the law, you harm yourself. The claim that you did not know a regulation will not be heard in court. In Swiss criminal law, Art. 21 StGB provides that legal errors will not be punished or will be punished with milder penalties, unless this could be avoided.

Common law

In Anglo-Saxon countries, when applying common law , one can not excuse oneself in terms of contract law by not having fulfilled one's obligations because of a legal error. William David Evans had already pointed out in 1806 that the maxim "ignorantia legis non excusat" applies to the area of ​​contractual breaches of duty ("no man shall, under the pretence of an ignorance of the law, excuse himself from the performance of his own." obligations ").

See also

Individual evidence

  1. ↑ Erich Göhler, Law on Administrative Offenses , 13th edition. 2002, no. 1 to § 11.
  2. ↑ OLG Stuttgart NStZ 1993, 344; OLG Hamm NJW 2003, 1061.
  3. ^ Carsten-Friedrich Stuckenberg, preliminary study on intent and error in international criminal law , 2007, p. 592 f.
  4. ^ Theodor Goltdammer : The materials on the penal code for the Prussian states , 1851, part I, § 44, note IV.
  5. ↑ cf. Wolfgang Joecks in: Munich Commentary on the Criminal Code, 2nd edition, § 17 Rn. 58
  6. ^ LG Cologne, judgment of 7 May 2012, Az .: Wa 151Ns 169 / 11Beschneendung, p. 8 f. (PDF; 68 kB)
  7. ↑ cf. Thomas Fischer, StGB, 58th edition 2011, § 15 no. 12
  8. ↑ a b c ( page no longer available , search in web archives: BGHSt 2, 194 (PDF; 128 kB) )@1@ 2Template: Toter Link / marxen.rewi.hu-berlin.de
  9. ↑ a b Peter Schwacke, Law of Ordinances , 2008, p. 38 f.
  10. ↑ BGHStE 4, 1 ff.
  11. ↑ BGHStE 21, 18, 20
  12. ↑ a b Helmut Koziol / Peter Bydlinski / Raimund Bollenberger, short commentary on the ABGB , 2007, p. 2 f.
  13. ↑ JBl 1960, 604
  14. ↑ Helmut Fuchs, Austrian Criminal Law , General Part , 2004, pp. 185 f.
  15. ↑ Nobody is allowed to free himself from the fulfillment of his obligations under the pretext of ignorance of legal regulations
  16. ↑ Hans Stoll u. a., Festschrift for Hans Stoll on his 75th birthday , 2001, p. 105 and footnote 174