Prohibition error

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The prohibition error ( Latin error iuris ) is a mistake made by the perpetrator about the illegality of his act. The subsumption error is a sub-case . In the case of omission offenses , one speaks of an error of command if the perpetrator erroneously does not consider his duty to act as mandatory (required).

If the perpetrator is wrong not only about the illegality, but also about the scope of the alleged justification , one speaks of a double error .

Germany

Demarcation

Unlike the offense error ( error facti , § 16 of the Criminal Code) the offender in mistake of law or not circumstances (facts and laws) that belong to a criterion but about its legal assessment by the criminal law is wrong. An error related to the error of prohibition is the error of permission .

A counterpart to the error of prohibition is the delict , also known as the reverse error of prohibition . The German lawyer and book author Ralf Höcker uses the term legal error and uses examples to show that some permitted acts are wrongly assumed to be prohibited.

Legal regulation

The error of prohibition is regulated in German criminal law in § 17 of the Criminal Code (StGB) and in § 5 of the Military Criminal Law (WStrG). The regulation in administrative offense law is formulated in the same way ( Section 11 (2 ) OWiG ).

Section 17 StGB reads:

If the perpetrator does not have the insight to do wrong when committing the act, he acts without guilt if he could not avoid this error. If the perpetrator was able to avoid the mistake, the sentence can be reduced according to Section 49 (1).

There is a mistake in the prohibition if the perpetrator is unaware of the prohibition norm, considers it invalid or misinterprets it in such a way that he regards what is actually prohibited as legally permissible. The perpetrator is mistaken about the illegality of the act in its specific guise. Knowledge of a particular law that has been violated does not matter.

Example: If a foreigner who unexpectedly lands in Germany due to a rerouted flight and does not have any knowledge of German laws (and does not have to because he ultimately did not want to travel to Germany) does something that is prohibited in Germany, in other countries but is typically allowed (e.g. wearing swastikas openly), it is a mistake of the prohibition because he could not expect to break a law.

Legal consequences

In the case of Section 17 of the Criminal Code, an error in the prohibition only eliminates the guilt of the perpetrator if the error was unavoidable ( Ignorantia legis non excusat ). The mistake about unlawfulness can be avoided if the wrongdoing was easily recognizable for the perpetrator as well as for everyone or if the perpetrator did not familiarize himself with the relevant regulations, although he was obliged to do so in his profession, employment or other circumstances would be (obtaining the necessary knowledge, e.g. by interviewing a lawyer).

Inevitability, however, is only conceivable in rather unusual constellations and rarely occurs in practice. One example was the first instance judgment in the Mannesmann trial . However, the BGH expressly contradicted this decision in the appeal proceedings. In antitrust law , too , an apologetic error of law is only recognized very restrictively, for example in the case of the freight forwarder groupage conference .

The strict regulation of Section 17 of the Criminal Code is viewed as justified because the perpetrator does not distinguish between the categories of right and wrong; he lacks knowledge or insight into injustice. The regulation in military criminal law is different : If a soldier commits a criminal offense on command, without there being an orderly emergency , he is only guilty if he realizes that he is carrying out a criminal act or that this is obvious from the circumstances . The reason for the milder treatment of military personnel acting on orders is to be seen in the fact that an order, especially in the field, must be carried out immediately and the soldier does not have the opportunity to gain knowledge of the legality of his actions to the same extent as a civilian .

Austria and Switzerland

In Austria the error of prohibition is called legal error . It is standardized in Section 9 of the Austrian Tax Code. In Switzerland, based on the earlier law, there is also talk of a legal error (Art. 21 StGB / Art. 17 MStG ).

The term of legal error, which is used in Austria and Switzerland, is not helpful for the delimitation of the factual error, because errors about legal provisions that belong to a factual feature ( normative factual features) are not prohibitive errors (or legal errors within the meaning of the Austrian StGB and CH- StGB).

Austrian law speaks of reproachability instead of avoidability, but means the same in substance.

Common law

In Anglo-American law , the misconduct is referred to as the error of law or mistake of law .

literature

  • Claus Roxin : Criminal Law. General part. 3. Edition. Volume 1, Beck Verlag, Munich 1997, ISBN 3-406-42507-0 , pp. 791-825.
  • Christoph Wolf: Error facti et error iuris. The intentional irrelevance of legal error. (= Studies and contributions to criminal law ). Mohr Siebeck, 2019, ISBN 978-3-16-155472-8 .

Web links

Individual evidence

  1. ^ Lexicon of legal errors . Ullstein, Berlin 2004, ISBN 3-548-36659-7 .
  2. ^ Walter Brugger : Misconduct and antitrust law at www.profbrugger.at , December 2010, requested on January 10, 2011 ( PDF ; 146 kB)
  3. ↑ In the new law, the marginal titles of the corresponding norms (Art. 21 StGB / Art. 19 MStG) read “Error about illegality”.
  4. ^ Gunther doctor: Ignorance or Mistake of Law. In: The American Journal of Comparative Law. 1976, pp. 646-679.