In criminal law, intent ( dolus ) denotes the will to realize the facts of the case with knowledge of all objective circumstances, including the causal relationships . The jurisprudence speaks of the knowledge and willingness of the implementation of a criminal offense . In the case of intentional offenses, intent represents the essential part of the subjective offense , largely congruent with the decision to commit .
Colloquially, intent also means "(firm) intention or decision"; in other words, something that someone has deliberately set out to do.
Prerequisites for intent
In the case law and some of the legal doctrine, intent is briefly described as “knowing and willing to realize the facts”. However, this definition may fall short. In science it is disputed, among other things, whether the intent only includes the perpetrator's knowledge of his act, only his will to carry out the act, or, as in the case law, both.
A stronger emphasis on the cognitive element (knowledge) as opposed to the voluntary element (willing) speaks in favor of the argument that the perpetrator's wish is not usually the realization of injustice, but that he only accepts this as a necessary evil in order to avoid another, possibly even to achieve an honest goal.
A stronger emphasis on the voluntary element over that of the cognitive element speaks for the fact that the perpetrator can never know all the circumstances of his act, which should not be of advantage to him.
The presence of intent when carrying out an act is generally decisive for the legal consequences that affect the perpetrator. For the requirements of the intent, it is still decisive which area of law is affected. In principle, the term is interpreted more strictly in criminal law because the legal consequences that can affect the perpetrator (e.g. imprisonment ) represent, on the one hand, stronger interventions for him than claims for damages under civil law. The enforcement of legal consequences under criminal law is, on the other hand, an act of public authority which , as such, requires justification because it limits the perpetrator's fundamental rights .
Degrees of intent
The Dolus term (prefix) knows three levels of classification:
- Dolus directus 1st degree ("intention"): The intention is the purposeful will to bring about the actual success. The realization of the facts is the "goal" of the offender's actions.
- Dolus directus 2nd degree ("direct intention", "knowledge"): The perpetrator knows that his own actions lead to the realization of the offense.
- Dolus eventualis ("contingent or conditional intent"): The conditional intent is given if the perpetrator "seriously considered the success of the crime to be possible and accepted it approvingly", or "comes to terms with this risk". The contingent intent is basically sufficient to justify intent for an act.
Applies to the intent - as for the other constituent elements - the Simultanitätsprinzip . This means that the intent must be present when the offense is committed, see i. V. m. StGB. The perpetrator must therefore have knowledge of the past and present elements of the offense and foresight about the future course of the crime and the success of the crime. A premeditated act (lat. Dolus antecedens) or after the act (lat. Dolus subsequens) is not sufficient for the acceptance of a deliberate act. Neither is the so-called dolus generalis , according to which it should be sufficient that there was intent at some point in the commission, is not a case of intent.
In the case of participants ( instigators , assistants ), their intent must relate to both the intentional and illegal act and their own contribution. In this case, the point in time of your own contribution to the crime is decisive for the existence of intent (e.g. in the case of incitement).
An error about the circumstances of an act ( factual error , (1) StGB) regularly excludes intent; punishment for the negligent commission of an offense remains unaffected. The intent does not apply to the so-called error of prohibition ( StGB), in which the perpetrator is only wrong about the legal assessment of his action. In the case of a mistake in the prohibition, impunity only applies if the perpetrator could not avoid this mistake.
Contingent intent (dolus eventualis) and deliberate negligence (luxuria)
The distinction between contingent intent and deliberate negligence is problematic. Both a contingent intent and a deliberately negligent offender regularly reckon with the possibility of fulfilling the circumstances specified in the law and of being able to bring about the actual success through his behavior.
According to the prevailing doctrine and established case law of the Federal Court of Justice , a perpetrator does not act willfully, but only deliberately negligently if he seriously trusts that the factual success will not occur. According to the more recent opinion, this also includes psychological processes of danger repression. In such case constellations the perpetrator mentally suppresses his idea of the possibility of success.
All circumstances of the respective individual case must be taken into account during the examination. A mere vague assumption by the perpetrator, true to the motto “Well, if so…” is not sufficient for an affirmation of merely negligent behavior. Rather, in those cases, the occurrence of success is considered possible, not entirely remote, and at least accepted with approval ( approval theory for contingent intent). In homicides, the inhibition threshold theory is intended to prevent a schematic conclusion from the objective danger of an action to the element of will.
From the point of view of the Federal Court of Justice, contingent intent is to be assumed even if the perpetrator may not want success in itself, but the criteria of the approval theory are met.
According to the provisions of civil law , the need to represent is measured in accordance with (1) of the German Civil Code ( BGB) on the basis of the subjective characteristics of intent and negligence.
Intent is the knowledge and willingness to realize the facts in the awareness of the illegality. The term thus corresponds to that of criminal law, except for the necessary awareness of illegality . In accordance with (1) of the Criminal Code, intent can therefore be dispensed with if there is a factual error. The willful act can trigger increased liability, for example in the case of immoral willful damage within the meaning of BGB.
In the area of liability insurance in particular, it is important that the intent must not only include the damaging event, but also its consequences.
In criminal law , intent is a mandatory element of the offense ( Criminal Code ) for the implementation of a criminal offense. Unless otherwise specified, it is therefore always requires of intent (except for those expressly stated negligence offenses , such as , , Penal Code). If no specific degree of intent is required (e.g. "intentional"), the weakest form of intent, dolus eventualis (conditional intent), is always sufficient.
According to the reverse of (1) StGB, intent is the knowledge of all circumstances that are part of the statutory offense, i.e. the features of the offense. The prevailing opinion , however, is not satisfied with the mere knowledge of the elements of the offense, since on the one hand the will in the grammatical meaning of the word "intent" resonates and on the other hand there must always be a will if someone commits an act with knowledge of the facts. For this reason, the short formula for describing the intention is: knowledge and willingness to realize the facts. However, this short formula is criticized in the legal literature because of its brevity and inaccuracy. A more precise definition is therefore usually the will to realize a criminal offense with knowledge of all the circumstances of the offense, i.e. H. objective criteria, proposed.
- Frank Bleckmann: Criminal law doctrine - theoretical, sociological, historical: the example of criminal intent , Freiburg im Breisgau: Ed. Iuscrim, Max Planck Inst. for foreign and boarding. Criminal Law, 2002, ISBN 3-86113-049-1 .
- Theodor Geßler: About the concept and types of Dolus . Laupp, Tübingen 1860 ( digitized version )
- Walter Kargl: The criminal intent based on the cognitive action theory , Frankfurt am Main, Lang 1993, ISBN 3-631-45818-5 .
- Claus Roxin : Criminal Law. General part. (Part 1). 3. Edition. Beck Verlag, Munich 1997, ISBN 3-406-42507-0 , pp. 363-403.
- Compare the entries intentional and deliberate in the online Duden ; especially the sections on the meaning of the word and the synonyms . Retrieved January 16, 2018.
- BGHSt 19, 295, 298.
- Federal Court of Justice , NStZ case law report . Year 2013, 2013, p. 91 .
- BGH, judgment of October 18, 2007 , Az. 3 StR 226/07, full text, Rn. 11.
- Detlev Sternberg-Lieben: In Schönke / Schröder Commentary on the German Criminal Code , 27th edition, Munich 2006, § 15 Rn. 75.
- OLG Hamm, judgment of November 6, 1996 ( Memento of the original of December 3, 2015 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , Az. 20 U 28/96, slaps for party guests , brief information.
- OLG Koblenz, judgment of July 6, 2007 ( Memento of the original of July 9, 2014 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. , Az.10 U 1748/06, full text.
- Kristian Kühl : Criminal Law, General Part , Munich, Verlag Franz Vahlen, 8th edition 2017, § 5 Rn. 11 f.
- Compare online commentary on the StGB, A. Concept and definition of intent.