Ignorantia juris non excusat

Ignorantia legis non excusat, sometimes Ignorantia iuris non excusat or Ignorantia iuris neminem excusat is a principle of law from Roman law, as the popular saying that "ignorance is law is no excuse " in the German language is known. This old folk wisdom is right in today's everyday life - except for the few exceptions to the inevitable mistake of law - mostly valid. In contrast to an error as to the actual conditions ( " ignorantia facti " ) includes an error of law, in particular, a mistake of law, the guilt of an offender under German law only if the error was not avoidable (§ 17 StGB).

General

Both principles concern the error doctrine in criminal and administrative offenses, which is largely the same in both jurisdictions.

Ignorance refers to the absence or lack of knowledge of the offender on individual constituent elements that draw as a legal consequence a punishment. According to the legal definition of § § 16 and § 11 of the Criminal Code Administrative Offences Act is not intentional, who does not know even a single fact which is part of the statutory offense. This is true even if the error is due to the fact that the perpetrator acted in thoughtlessness. Linguistically, the term " error " is misleading, because the so-called facts mistake it 's all about the positive knowledge of certain constituent elements, the mistake of law only to raise awareness, to do something illegal; a positive opposite idea ( what a mistake actually makes ), however, is not necessary.

The facts mistake excludes the intent, but leaves a punish negligent conduct in so far as legal rules also negligent acts under penalty or under a pain of a fine. The mistake of law, however, does not rule out the intent, but considered an excusable absence of wrong consciousness, which can lead to impunity, unless it was unavoidable. The consciousness of doing something illegal, does not require that any specific prohibition standard is known. Rather, an awareness of it is enough that the act is an injury of the type described in the relevant standard. It is therefore the one hand, no positive knowledge of the law necessary, but on the other hand reaches a rating of an act as socially illegal or harmful or morally reprehensible not.

German legal history

Some states of the German Confederation had recorded a provision in their criminal codes, which ignorance of the criminal law does not preclude criminal liability ( as Brunswick 1840, § 31, Hesse, 1841 in Art 41, Saxe-Altenburg, 1841 in Art 68 Baden 1845 in § 73, the Thuringian States in 1852 in Article 63, paragraph 3, 1852 in Austria § 3, Saxony 1855 in Article 95, paragraph 2). Bavaria had picked the opposite provision of the Criminal Code of 1813 (Article 39) in 1848. It was based on the doctrine of Anselm von Feuerbach, who still demanded the knowledge of the criminal law for its effectiveness. In the creation of the Prussian Penal Code of 1851 they had deliberately not to disclose such provision because "the invalidity of the error already common rightfully was" and the Implementation Act of April 14, 1851 the title 20 Part II of the general land laws, with its provisions on the effect the ignorance of the criminal laws repealed.

Criminal

Today's criminal mistake doctrine assumes that an offense committed in error offense can not be punished or will be punished more leniently if the error could have been avoided (§ § 16, 17 StGB). The offender must while committing the offense insight missing, doing wrong. In the absence of wrong consciousness is a mistake of law exists. Here, the error may be due to lack of knowledge of the law or to a strict interpretation of the standard ( so-called Subsumtionsirrtum as a form of mistake of law ). This error must be unavoidable. An unavoidable mistake of law is assumed to be unsettled legal questions that are not answered uniformly in the legal literature, particularly when the legal situation is overall very unclear, or a qualified legal advice to inconclusive results. A mistake is avoidable if the offender has acted negligently a fact realized unlawful, by violating a duty of care to objectively and causes a violation of a legal duty by this violation, he could foresee according to his subjective knowledge and skills. An avoidable mistake leads to reduced penalties in accordance with § 49 Section 1 of the Criminal Code. An error event closes in accordance with § 16 Section 1 Sentence 1 of the Criminal Code a punishment for deliberately committing way out, because intent requires knowledge of all members of the legal facts circumstances require.

The wrongdoing is of guilt theory - following the Supreme Court - an independent fault element. For elimination of the debt shall, in accordance with § 17 sentence 1 of the Criminal Code only an unavoidable mistake of law. For this is required by the offender that he prohibited the awareness of his behavior could not see after due conscience tension. In preventability it is up to the court whether it will mitigate the punishment (§ 17 sentence 2 of the Criminal Code). This provision represents the only exception of the old German folk wisdom and is not often used. The rate assumed by the imperial court, the error on the criminal law does not exclude criminal liability, thus resulting in undeserved mistake of law for the punishment, although a notion of blame against the offender can not be collected and thus the violation of the principle all punishing that punishment presupposes guilt. What is right and wrong, is no longer self-evident. Thus opens up the possibility of a mistake of, even the blameless.

Misdemeanor cases

In misdemeanor cases protects the error ( ignorance ) not present fine penalty. Missing the disorderly doer sense of wrongdoing, it is in mistake of law. According to § 11 OWiG a mistake is not only a false idea, but even in the absence of any prior performance. A disorderly conduct is the absence of culpability only not punished, if the mistake was not to be avoided. Disorderly behavior is avoided if at all adaptation intellectual powers of knowledge and moral values ​​prohibitions awareness and lawfulness can be distinguished. It depends on whether the offender according to their individual abilities and by objectively demanding care (if necessary by examination and inquiry ) to the wrong insight could have been.

The offense does not include a right to § 17 paragraph 2 of the Criminal Code appropriate mitigating regulations. In the case of an avoidable mistake of law, however, is the intentional fine performance to assess milder. Those who act without a sense of wrongdoing, does not behave accused, if he could not avoid the lack of injustice insight ( § 11 sub-section 2 ). The wrongdoing is missing, if the offender does not know the fine standard. Who is doing something illegal in unavoidable ignorance is no sense of wrongdoing, for a total not accused. If the disorderly doer any wrongdoing is missing, it is located in mistake of law. Was the mistake of law can not be avoided, the act is not punishable due to lack of culpability. The law assumes, however, that with a judicious eligible offenders ( § 12 Administrative Offences Act ) representing the presence of awareness of injustice is the rule and its absence the exception.

Austria

The old rule of law " ignorantia legis non excusat " also applies in Austria, as in § 2 of the Civil Code is clear: " Once a law has been made duly made ​​known, no one can excuse the fact that no known him the same sey. " This provision originally wanted to set up the irrebuttable presumption of fault on the ignorance of a statutory provision. Meanwhile, one is moved away from the interpretation as irrefutable fiction of § 2 Austrian Civil Code and sets out the procedure of the effect that no one can excuse ignorance alone with laws. The application of a law in force does not depend on the knowledge of the laws of the contents by the norm addressees from. In the former Austrian criminal law (1852-1945) was regulated that the ignorance of the present law, no one can excuse (§ § 3, 233 ÖStG ).

Switzerland

In Switzerland, the civil law principle of " ignorance of the law harms " ( ignorantia iuris nocet ) holds. Who does not know the law itself harms the claim, you would not have known a rule, is not heard in court. In the Swiss criminal law this principle also no importance.

Common Law

In Anglo-Saxon countries can you in the application of the common law, contract law does not excuse, to be its obligations not fulfilled because of a mistake of law. William David Evans had in 1806 pointed out that the maxim " ignorantia legis non excusat " did not apply to the field of contractual breaches of duty ( " no man Shall, under the pretense of an ignorance of the law, excuse himself from the performance of his own obligations " ).