What are certain intentional offenses
I didn't mean to kill him! - The intentional act
Image: "A story called regret" by Kira Westland. License: CC BY 2.0
Basics of intentional offenses
There is no legal definition of intent. However, it is based on the evaluations of §§ 16 f. StGB. Thus it can be said that the intent relates to the circumstances of the factual realization and the awareness of wrongdoing (= awareness of behaving in a punishable manner) only has to be taken into account in the context of the guilt. [Child houses, § 13 marginal number 1]
The intent includes a intellectual and a voluntatives Element.
The intellectual element is the Knowledge of the circumstances of the incident. A factual awareness is sufficient, so the perpetrator does not have to constantly actively think about the crime. [Child houses, § 13 marginal number 2]
However, it is controversial whether a voluntative element is necessary at all. The is defined Intent thus as Knowing and willing to realize the facts. [Joecks, § 15 marginal number 7]
The intent is checked in subjective fact and must therefore refer to all objective criteria. [Child houses, § 13 marginal number 4]
Other subjective factual features, which at Offenses with an excessive internal tendency (e.g. the intention to assassinate in Section 242 of the Criminal Code) are to be examined separately and independently of intent. [Child houses, § 13 marginal number 6]
It must always a Deliberate act exist, except in the case of a crime, according to § 15 StGB there is also a Offense against negligence intended. [Kindhäuser, § 13 Rn. 7] From § 15 StGB it follows that acts committed negligently are only punishable if the law expressly provides for such a criminal liability.
According to Section 16 (1) sentence 1 of the Criminal Code, the intent must be present when the act was committed, i.e. at the time of the execution of the crime. Therefore, a previous intent (dolus antecedens) and a subsequent intent (dolus subsequens) irrelevant. [Child houses, § 13 marginal number 8]
In principle, the intent must relate to each individual element of the offense. The intent thus ceases subjective reflection of the objective fact It also follows from this that objective conditions of criminal liability (e.g. the “offense committed while intoxicated” in Section 323 a of the Criminal Code) do not have to be included in the intent. [Child houses, § 13 marginal number 10]
There must also be intent with regard to the criminalization of the offense. [Child houses, § 13 marginal number 11]
Types of intent
A distinction is made between three types of intent [Joecks, § 15 marginal number 8]:
- intention (1st degree dolus directus)
- direct intent (2nd degree dolus directus)
- conditional intent (dolus eventualis)
Basically all intent forms are available Equal rights side by side. Only if the offense explicitly requires a certain form of intent is an inspection possible with the corresponding intent. [Child houses, § 14 marginal number 2]
Intent is present when the perpetrator realizes the factual circumstance strives and assumes that he can bring this about through his behavior. [Child houses, § 14 marginal number 3]
It is sufficient if bringing about the element of the offense is merely an intermediate goal. [Joecks, § 15 marginal number 9]
The perpetrator acts with direct intent if he realizes the element of the offense for a safe consequence of his intended action holds. [Child houses, § 14 marginal number 8]
Here is the intellectual component in the foreground, i.e. it is irrelevant whether the perpetrator wants success at all. [Joecks, § 15 marginal number 11]
The exact requirements of the dolus eventualis are controversial. In particular, this dispute relates to the presence of a voluntary element. [Joecks, § 15 Rn. 12 ff.]
This dispute is particularly relevant because one Differentiation from deliberate negligence is necessary, which is usually exempt from punishment. [Child houses, § 14 marginal number 14]
The intellectual theories of demarcation focus only on the intellectual intent component and consider a voluntary component to be dispensable. [Child houses, § 14 marginal number 15]
According to the Possibility theory the perpetrator must at least consider the occurrence of success to be concretely possible. [Joecks, § 15 marginal number 15]
In contrast, the Probability theorythat the perpetrator thinks success is likely. Probably means more than possible, but less than mostly probable. [Joecks, § 15 marginal number 15]
After Risk theory the deliberate act of perpetrator is incompatible with the risk maxims of the legal system. [Child houses, § 14 marginal number 18 ff.]
The Avoidance theory affirms contingent intent if the perpetrator considers the realization of the facts to be possible without exercising an avoidance will. [Joecks, § 15 marginal number 15]
However, other theories require a voluntative element in addition to an intellectual one. [Child houses, § 14 marginal number 22]
The represented by the rpr Consent or approval theory demands that the perpetrator deny the Approvingly accepts success. If he trusts in the lack of success, no contingent resolution can be assumed. The question is whether the perpetrator would have acted if he had known that the success would occur. [Joecks, § 15 marginal number 16]
After Serious Theory intent is affirmed if the perpetrator recognizes the danger of the factual success, takes it seriously and comes to terms with it. [Joecks, § 15 marginal number 16]
According to the Indifference theory there is conditional intent if the perpetrator accepts the realization of the facts considered possible by him out of indifference to the protected legal interest. If success is undesirable as a side effect, there should be no intent. [Child houses, § 14 marginal number 26]
Ultimately, it is essential to focus on the individual case and to take into account the extent to which the perpetrator's knowledge and will are sufficient. However, the case can be used to refer to the consent and approval theory. [Joecks, § 15 Rn. 19 ff.]
In unproblematic cases, i.e. if a distinction between conditional intent and deliberate negligence does not appear relevant, theCombination theoryto be followed. According to this, the perpetrator acts with “dolus eventualis” when he has recognized the danger of success and has only accepted it (intellectual element) and has accepted the success of it approvingly (voluntary element).
Special forms of intent
The perpetrator assumes that his actions several facts next to each other realized, every factual realization can be attributed to intent. [Child houses, § 14 marginal number 32]
Here the perpetrator assumes to realize one of mutually exclusive facts. Such as when he shoots behind him in pursuit and hits either the policeman or his dog. [Child houses, § 14 marginal number 33]
According to the h.M., if the offense is successful, intent should be given with regard to the offense committed, in unit of offense with an attempt at the other offense. If there is no success, only the attempt to commit the more serious offense should be punished. [Child houses, § 14 marginal number 34]
With the outdated view of a dolus generalis and the treatment of such constellations under the aspect of the insignificant deviation from the causal process, see the article cesspool case.
Errors in criminal law - learning aid for your law studies
In our free eBook you will find the individual errors explained step by step using suitable example cases:
✔ Errors at the factual level
✔ Errors at the level of illegality
✔ Errors at the guilt level
✔ Errors about personal reasons for exclusion from punishment
- Joecks, Wolfgang: Criminal Code Study Commentary, 10th edition 2012.
- Kindhäuser, Urs: Criminal Law General Part, 6th edition 2013.
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