Incitement (Germany)

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The incitement is an institute of criminal law in Germany . According to this, an instigator is punished like a perpetrator who deliberately appoints another to his willfully committed unlawful act ( § 26 StGB ). In addition to aiding and abetting ( Section 27 of the Criminal Code), inciting is a form of participation in a crime .

According to the prevailing opinion, the criminal reason for inciting is the cause of a violation / endangerment of a legal interest.

Requirements for the main act

The main perpetrator instigated must commit a deliberate, unlawful main act . From Section 11 of the Criminal Code it follows that an unlawful act must always be an offense (“only one that fulfills the criteria of a criminal law”), i.e. an act that fulfills all the objective and subjective criteria of a criminal offense.

Whether the main perpetrators also culpably acted is irrelevant (so-called limited accessoriness ). This results from the wording of § 26 StGB ("... unlawful act ...") and the principle that everyone is to be punished according to his own guilt ( § 29 StGB).

An unsuccessful and thus merely attempted incitement is only punishable in the case of an intended crime according to Section 30 of the Criminal Code ( attempt to participate ), but is punishable in the case of an intended offense (wording of Section 26 of the Criminal Code: “... who deliberately committed another unlawful act determined ").

A distinction must be made between the attempted (unsuccessful) inciting of the main perpetrator, however, the inciting to attempt by the main perpetrator. If someone incites a main perpetrator to attempt his or her attempt, the incitement is successful in this respect: an attempted act is also a possible main act. Inciting the attempt is therefore also punishable if the main offense is an offense, as long as the attempt is also punishable in the main offense.

Inciting act ("determining")

In Section 26 of the Criminal Code, only the word “certain” is used to define incitement. What is meant by this has long been controversial in the legal literature. The BGH and the prevailing opinion in the literature understand this to be any evocation of a decision to act . According to this, it may be sufficient to create a tempting situation. According to other views, communication with the main perpetrator or even an injustice pact ( collusion ) should be necessary .

Someone who is already determined to commit a criminal offense can no longer conceptually be incited to do so. The Latin technical term used by lawyers for this is omnimodo facturus (also alias facturus ). In these cases, too, there is only one attempt at incitement (with no penalty for offenses ). In these cases, however, one should think of psychological aid or the always punishable incitement to a crime, Section 30 of the Criminal Code.

Willfulness with regard to the main act and the will to violate legal rights

The instigator must also have intended the main act committed (included in his resolution). An agent provocateur does not want the end of the other act and a violation of the protected legal interest (such as property or physical integrity), but only its attempt (or possibly only its formal completion without an actual violation of legal interest, individually controversial). According to this, he is not to be punished as an instigator, because the reason for the instigation is to cause a violation or endangerment of a legal interest. This also applies to undercover agents .

Intentional act of incitement

The intent of the instigator must also include the instigating act (determining) itself. There are problems here if someone wants to make someone else his (e.g. irresponsible) tool in the sense of an indirect perpetrator , but he sees through this and deliberately commits the main offense . He who makes someone his (dependent) tool is doing more than an instigator. Thus the will to incite someone to commit a crime should be contained in the will to make someone his tool.

Penalty frame / shift in penalty frame

Section 26 of the StGB stipulates that the instigator is to be punished like a perpetrator. A legal mitigation of punishment is therefore not provided (in contrast to aid). The punishment for the instigator can, however, in certain cases be higher or lower than for the main perpetrator of the concrete main offense (cf. § 28 and § 29 StGB).

See also

literature

  • Kristian Kühl : criminal law; General part. 4th edition, Munich 2002, ISBN 3-8006-2843-0 , Rn. 843–860 (Section 20 V. Incitement)
  • Claus Roxin : Criminal Law. General part. (Volume 2). Beck Verlag, Munich 2003, ISBN 3-406-43868-7 , pp. 148-191.
  • Hans Welzel : The German criminal law. 11th edition, Walter de Gruyter & Co, Berlin 1969, pp. 111–119 [§ 16. Participation I. Basics and II. Incitement (§ 48) ]

Web links

Wiktionary: incitement  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Wolfgang Joecks / Jörg Scheinfeld , in: Munich Commentary on the Criminal Code, 4th edition 2020, before Section 26 paragraph (marginal number) 16.
  2. ↑ a b Günter Heine / Bettina Weißer, in: Schönke / Schröder, Criminal Code, 30th edition 2019, before § 25 Rn. 26th
  3. ↑ Kristian Kühl , in: Lackner / Kühl, StGB, 29th edition. 2018, StGB § 26 Incitement, paragraph (Rn.) 2.
  4. ↑ BGH, judgment of January 20, 2000, Az. 4 StR 400/99 , NJW S. 2000, 1877–1878 (1878) [= BGHSt 45, 373, 374] with: “In what form and by what means the influence takes place is equal to [...] ”(comments on Section 26 of the Criminal Code on the interpretation of“ determination ”in Section 30a (2) No. 1 BtMG).
  5. ↑ BGH, judgment of March 22, 2000, Az. 3 StR 10/00 , NStZ 2000, pp. 421-422 (421), beck-online.
  6. ↑ Knut Amelung / Gerhard Boch: housework analysis - criminal law: a marriage dispute with the hockey stick. JuS 2000, pp. 261-267 (263).
  7. ↑ Thomas Fischer : Commentary on the StGB. Section 26, marginal no. 3b.
  8. ↑ Ingeborguppe : What is incitement? - At the same time a discussion of the BGH, judgment of October 11, 2005 - 1 StR 250/05 , NStZ 2006, pp. 424–426 (424).
  9. ↑ Günter Heine / Bettina Weißer, in: Schönke / Schröder, Criminal Code, 30th edition 2019, § 26 Rn. 6th

Remarks

  1. ↑ § 48 refers to the place of the norm for incitement in the Criminal Code before the great criminal law reform .