Asperation principle

Asperation principle , also the tightening principle (from Latin asper "hard, sharp, strict") is a legal term from criminal law , in Germany regulated by law in Section 54, Paragraph 1, Sentence 2 of the Criminal Code . He refers to a offense and the guilt reasonable method, total sentence to determine if the offender because of several offenses each other in Tatmehrheit ( § 53 para. 1 of the Criminal Code) are, is sentenced at the same time. Counterpart is in the case of coincidence coming to apply absorption principle .

Formation of an aggregate penalty

First of all, an individual penalty must be formed for each individual offense in accordance with the rules of sentencing . Of these various individual penalties, the highest forfeited penalty, the so-called deployment penalty, is then increased, taking into account and weighing up the general reasons for the sentencing. The minimum amount of the total penalty is the highest possible penalty according to Section 54 (1) sentence 2 StGB. The maximum amount of the total punishment must not reach the sum of the individual punishments (§ 54 Abs. 2 S. 1 StGB).

Other countries

The determination of the sentence when several criminal acts occur together is regulated in Section 28 of the Austrian Criminal Code. The punishment is to be determined according to the law that threatens the highest punishment. The Austrian administrative criminal law also knows the accumulation of several penalties in § 22 VStG .

Art. 49 of the SwissCriminal Code alsoenshrines the asperation principle with the formation of atotalpenalty.

The US criminal law does not distinguish between coincidence and Tatmehrheit. In the event of several violations, the individual penalties are generally added up (principle of addition). Unlike in Germany, penalties can be significantly higher than human life expectancy.

literature

Verena Klappstein, Jan Kossmann: The total penalty formation. JuS 2010, pp. 785-790
Sonja Koch: Asperation principle and retrospective competition. Zurich studies on criminal law 71, 2013. ISBN 978-3-7255-6948-9
Ernst Wolff: Basic cases of total sentence formation. JuS 1999, p. 800

Web links

Karl-Werner Fellner: Problems of competition in tax offenses. Inconsistent criminal liability for comparable offenses SWK Steuer- und WirtschaftsKartei 2010, pp. 580–586
Punishment as a "tailor-made suit", developments in sexual criminal law and changes to the property offenses Austrian Federal Ministry of Justice , press release from May 20, 2014 on Judges Week 2014
The fine art of sentencing strafverarbeitung.ch, June 21, 2011
Juana Vasella: additional penalty and total penalty; retrospective competition, asperation principle and accumulation principle April 30, 2012 (on the legal situation in Switzerland)

Individual evidence

↑ Tröndle / Fischer: Criminal Code: StGB with subsidiary laws , Section 54, margin no. 4th
↑ Höpfel / Ratz, WK StGB, 2nd edition (as of October 1, 2011)
↑ Administrative Penal Act 1991 - VStG
↑ Swiss Federal Supreme Court , Criminal Law Department, Complaint in Criminal Matters 6B.65 / 2009: judgment of July 13, 2009
↑ Henning Schaum: Sentencing in the US Trial - An Overview German American Law Journal, March 15, 2010

[1] Tröndle / Fischer: Criminal Code: StGB with subsidiary laws , Section 54, margin no. 4th

[2] Höpfel / Ratz, WK StGB, 2nd edition (as of October 1, 2011)

[3] Administrative Penal Act 1991 - VStG

[4] Swiss Federal Supreme Court , Criminal Law Department, Complaint in Criminal Matters 6B.65 / 2009: judgment of July 13, 2009

[5] Henning Schaum: Sentencing in the US Trial - An Overview German American Law Journal, March 15, 2010