Attempt to qualify for success

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An attempt to qualify for success is a term from criminal law (§ 18 StGB). In contrast to the attempt qualified to succeed, such an attempt is present if the perpetrator, in realizing the basic offense, has the serious consequence of qualifying as successful within the meaning of Section 18 of the Criminal Code was included in its intent , but this serious consequence does not materialize. In contrast to a successful attempt, the serious consequence does not occur, although the perpetrator at least considered it possible or even foresaw it as certain.

Example: The perpetrator (T) abuses his victim (O) in the knowledge that this could also die as a result, which T however accepts (here dolus eventualis ), physically difficult. O survived. In addition to criminal liability under Section 223 (1) of the Criminal Code, a criminal liability for qualifying as successful under Section 227 (1) of the Criminal Code is also possible.

Case groups of the attempt to qualify for success

A distinction must be made between two different case groups of the attempt to qualify for success, namely

  1. the basic offense is carried out, but the serious consequence does not materialize;
  2. Basic offense and serious consequence are not realized.

Legal treatment of the attempt to qualify for success (§ 18) (Germany)

Since the perpetrator or participant of a successful qualification according to §18 StGB is only punishable if he is at least negligent (in the criminal sense) with regard to the occurrence of the serious consequence , a criminal liability must be even more possible if the offender has the serious consequence in has taken up his resolution. The construction of the attempt of §§ 22 ff. StGB requires a decision to act and thus intent with regard to all objective elements of the offense. This means that the attempt to qualify for success must also be possible according to the general rules. This applies all the more because offenses that qualify for success are to be treated like deliberate offenses according to Section 11 (2) StGB, so that an attempt to qualify for success must also be possible afterwards.

If the perpetrator has therefore also included the occurrence of the serious consequence in his decision to commit the offense, the perpetrator may also be considered an experimental criminal offense with regard to the qualification for success.

However, since an attempt aimed at fulfilling a successful qualification (especially if the killing of the victim was intended by the perpetrator) will regularly be the subject of other criminal offenses, the attempt to successfully qualify here in the guilty verdict will of course only seldom acquire meaning in its own right, since the attempt to qualify for success is then behind withdraws from attempted manslaughter (§ 212 StGB) or murder (§ 211 StGB) by way of legal competition (specialty). (In the above example, §§ 227 Paragraph 1, 22, 23 Paragraph 1 StGB (attempt to qualify for success) would therefore be superseded by the more specific § 212 Paragraph 1, 22, 23 Paragraph 1 StGB (attempted manslaughter).)

The attempt to qualify for success would, however, remain of independent significance if its commission results in an injustice under criminal law which is not covered by other criminal norms (e.g. Sections 226 (1), 22, 23 (1) StGB); in this case, the attempted qualification for successful commissioning of the basic offense and other co-realized criminal offenses would be in the unity of the offense (Section 52 StGB).

Immediate preparation for the attempt to qualify for success, § 22 StGB (Germany)

After h. For the acceptance of the immediate start of the attempt within the meaning of § 22 StGB, a direct start of the basic offense is sufficient.

Withdrawal from the attempt to qualify for success, § 24 StGB (Germany)

Withdrawal from the attempt to qualify for success is basically possible according to the general rules of § 24 StGB. Problems comparable to those with the successfully qualified attempt do not arise here, since the injustice of the serious consequence in the case of the attempt to qualify for success has just not materialized. A "partial withdrawal" from the attempt to qualify for success is therefore still possible if the deliberately targeted severe consequence is voluntarily given up before it is realized. An "entire resignation" can also be considered if the (only attempted) basic offense is abandoned before the overall success (basic offense and serious consequence) is achieved.

Individual evidence

  1. ↑ BGH 4 StR 650/99, judgment of March 23, 2000, Rn. 9; Fischer, StGB, 62nd edition (2015), § 251, Rn. 8a.
  2. ↑ Bernd Heinrich: Criminal Law - General Part . 3. Edition. Stuttgart, 2012, p. Marg. 691 .
  3. ↑ Wessels / Beulke: Criminal Law - General Part . 28th edition. Heidelberg 2008, p. Marg. 598 .
  4. ↑ so also Fischer: StGB - Comment . 62nd edition. 2015, p. Section 22, marginal no. 37 .
  5. ↑ so also among others Fischer (with further references): StGB - Comment . 62nd edition. 2015, p. § 18, Rn. 9 .
  6. ↑ Bernd Heinricht: Criminal Law - General Part . 3. Edition. 2012, p. Marg. 691 .
  7. ↑ Bernd Heinrich: Criminal Law - General Part . 3. Edition. 2012, p. Marg. 691 .
  8. ↑ with further references. Fischer: StGB - comment . 62nd edition. 2015, p. Section 22, marginal no. 38 .
  9. ↑ Fischer: StGB - Comment . 62nd edition. 2015, p. § 18, Rn. 10 .
  10. ↑ In this direction also Fischer: StGB - Comment . 62nd edition. 2015, p. § 18, Rn. 10 .