Avoidability theory
The avoidability theory is a criminal law theory for objective attribution in cases of negligence .
According to the avoidability theory advocated by the Federal Court of Justice , the actual success, such as the death of the victim, cannot be attributed to a defendant if this success would have occurred even if he had acted in accordance with his duties. Concrete circumstances that make it appear possible that the success would have occurred are sufficient as evidence. The perpetrator therefore remains unpunished if he credibly demonstrates the possibility that the success would have been inevitable even with dutiful behavior. This result follows from the principle of In dubio pro reo .
Since the possibility of the lack of success in the case of dutiful behavior all too often cannot be ruled out, the theory of increasing risk demands proof that the success would certainly not have occurred had dutiful behavior. After all, the offender increased the risk of the factual success occurring through his breach of duty.
Individual evidence
- ↑ BGHSt 11, 1 ; BGHSt 33, 61
- ↑ Claus Roxin , AT 1, § 11 Rn. 72 ff .; Luís Greco : Method, style, person: Claus Roxin on his 85th birthday ZIS 2016, pp. 416, 418
- ↑ Bernd Schünemann , StV 1985, 230
- ↑ Cornelius Prittwitz : Risk dogmatics I: The theory of increasing risk (in the narrower sense) in: Wolfgang Naucke (Ed.): Criminal law and risk. Investigations into the crisis of criminal law and criminal policy in the risk society. Legal Treatises, Volume XXII. Frankfurt am Main, 1993, p. 323 ff.
