Affray

Participation in a brawl (formerly brawl ) is a constituent of German criminal law, which protects the legal right to physical integrity. It is an abstract endangerment offense, since brawls a general danger to life and limb is determine individual managers can be difficult to find though.

Legal basis

The offense is normalized in 231 of the Penal Code §:

(1 ) Any person who participates in a fight or in a committed several attack will be punished just because of this involvement with imprisonment up to three years or a fine, if the brawl or the attack of a person's death or serious bodily injury ( § 226) has been created.

( 2) Paragraph 1 is not an offense, who was involved in the brawl or the attack without him this is to blame.

Facts

Brawl

Under a brawl is defined as a mutual injuries associated with violent incident between at least three people. The third person required can happen even in retrospect, it removes, however, is over the brawl.

The participation term in § 231 of the Criminal Code does not match the participation pursuant to § 28 II of the Criminal Code, so the complicity and participation. Participation in a brawl in the preparation stage is therefore not possible. Along with the physical involvement, the prevailing opinion also includes a psychic Contribute, as when someone is cheering an offender verbally.

Several perpetrated attack

With multiple attack perpetrated by a directly related to the physical injury of another behavior of at least two persons is meant, that is the feature of reciprocity is omitted in this context. However, it does not necessarily have to come to blows. During the joint attack no complicity is also required, but only unit of the attack, the attack object and the attack will.

Objective condition of criminality

For the criminal liability of the perpetrator, it is necessary as an objective condition of criminality that the brawl or the attack caused the death of a person or serious injury within the meaning of § 226 of the Criminal Code. The heavy sequence can also take an innocent bystander, such as a spectator, as long as the sequence is directly caused by the danger brawl. Death of a spectator so due to a heart attack when he watches the fight, this is not sufficient for the objective condition.

As an objective condition of criminal liability of the perpetrators neither intent must still have negligence relating to serious consequence. According to the prevailing opinion it is the criminalization not in the way when the perpetrator is himself victim of serious consequence.

It is controversial whether a party should be punished to the brawl, when the severe episode occurs at a time when he is not yet or no longer involved in the brawl. The Court also affirmed a punishment for subsequent entry before or after the event, provided on this times already and still a fight or an attack is present, otherwise were to appear proof problems that § 231 StGB wanted to avoid. In the literature, the offense is then partially or completely rejected only in the affirmative, if the offender was involved prior to the episode. The reason for this distinction is called that a Tatbeitrag have already increased the danger of the fight before the episode.

But it is also been questioned fundamental that the legal concept of objective condition of criminality with the principle of guilt in criminal law is compatible; it is so critical that the offender could be punished for foreign injustice that was not him personally accused. Accordingly, should also be the result have been at least negligently caused by the offender.

Culpability of participation

According to the second paragraph, the participation must be to blame the perpetrator, what intent ( dolus least eventualis ), illegality and guilt requires. If they are not in one of the parties, this factor has no effect on the criminal liability of other participants, even if the necessary number of persons is not reached by it.