Violation of the duty of care or upbringing
The violation of the duty of care and upbringing is an offense according to German criminal law , which can be punished with imprisonment of up to three years or a fine according to § 171 StGB . In the police crime statistics in 2008 a total of 1,761 and in 2009 a total of 1,810 offenses according to § 171 StGB were counted.
Objective fact
The objective elements of the basic offense according to § 171 StGB are the existence of a legal or contractually owed duty of care or upbringing. Furthermore, only people who have not yet reached the age of 16 are protected, even if z. B. the legal custody relationship continues beyond that, usually until the age of majority .
Definition of the duty of care: The duty of care is primarily an obligation to protect. It is therefore primarily aimed at ensuring the child's healthy physical development. As a rule, a majority of actions are carried out over a long period of time and possibly systematically that result in the gross violation. A single injury can be gross if it is particularly serious.
Definition of the duty of education: The duty of education includes the guidance of the child in his physical and mental development.
Perpetration
The perpetrator must owe care or education. According to Art. 6 Basic Law i. V. m. Section 1626 of the German Civil Code (BGB) primarily the task of the parents or the parent with sole custody. Guardians ( § 1800 BGB) and supplementary caregivers ( § 1909 BGB), insofar as personal care is part of their family-court- determined scope of duties , must continue to be named, as well as foster parents ( § 1688 BGB) as well as the parent who has no custody ( § 1687a BGB) and the step- parent ( § 1687b BGB) in certain situations. Employees in children's homes owe these services by contract.
Employees of youth welfare , in particular of the general social service of the youth welfare offices , who have to fulfill the state child protection mandate (so-called "guardianship", § 8a , § 42 SGB VIII ) can also be affected by the criminal offense . In the "Kevin" case in Bremen, both the youth welfare staff and the official guardian (staff according to Section 55, Paragraph 2 of Book VIII of the Social Code) were held responsible for the violation of the duty of care and upbringing.
Successful act
One of the following facts must have occurred to the injured person:
- Risk of significant damage to physical development
- Risk of considerable damage to psychological development
- Criminal way of life
- prostitution
Possibly. there may be a unit of offense with the mistreatment of persons under protection .
Definitions of "endangering physical development" :
- poor hygienic conditions
- Deficiencies in health
- Defects in clothing
- Deficiencies in terms of living conditions
Definitions of terms "endangering psychological development" :
- Permanent solitude in the apartment
- Urge begging
- Bad role model function
- Making regular school attendance impossible
Criminal way of life :
To lead a criminal way of life means if the child or adolescent develops a tendency through the breach of duty to commit not only insignificant crimes , e.g. B. if the person under protection is often in gangs of thieves.
Individual evidence
- ^ BGH, decision of August 4, 2010 , Az. 2 StR 298/10, full text.
Web links
- Kevin - death by collective failure , reporting on ard.de.
- Georg Köpferl, On the legal asset and the prerequisites for the violation of the duty of care and education (Section 171 of the Criminal Code) [1]
literature
- Heribert Ostendorf: The criminal liability of parents for violating the duty of care and upbringing - a crime preventive study . 1st edition. Nomos-Verlag, Baden-Baden 1999, ISBN 978-3-7890-6007-6 .
