Intention (criminal law)

In German criminal intent ( dolus ) describes the essential part of the mental element feature. Roughly speaking, it represents the Tatentschluss

For the determination of legal consequences, drag the criminal acts afflicted by itself, in addition to the constituent material elements are also the mental element, including the intent heard used.

Requirements of intent

Often the intent is briefly described as a " knowing and willing of the facts realization." However, this definition sets may be too short. In science that is debatable among other things, whether the intent either only the knowledge of the offender captured by his act or to realize only his will, the deed or even both.

For a stronger emphasis on the cognitive element (knowledge) from that of the volitional element (wool ) there exists an argument that the desire of the perpetrator regularly not the realization of injustice had been, but he 'll take this as a necessary evil in purchase to another, possibly even to reach ehrhaftes goal.

For a stronger emphasis on the volitional element relative to the cognitive element is the fact that the perpetrator can never know all the circumstances of his crime, and this should not be of benefit to him.

The existence of intention in achieving an action is crucial in the control of the legal consequences that hit the perpetrators. For requirements relating to the attachment is still important to know which area of ​​law is concerned. Basically, the term is more restrictive because the legal consequences that can meet the offender (eg imprisonment ) to represent a stronger interference for this than about civil damage claims in criminal law. The enforcement of criminal law consequences is on the other an act of public authority, who needs a justification as such, once by fundamental rights of the offender to be restricted.

German civil law

Under the provisions of civil law, the obligation to represent is measured in accordance with § 276 Section 1 BGB to the subjective characteristics of intent and negligence.

Intent is the knowledge and will of the facts realization in consciousness of illegality. Thus, the term corresponds to the required awareness of the illegality of the criminal law. An event error can therefore account for the intent. The intentional act can trigger a stricter liability ( for example, § 826 BGB).

Particularly in the area of liability insurance is important that the intent must include not only the loss event, but also its consequences.

German criminal law

In criminal law, the intent is mandatory criterion (§ 15 StGB) the realization of a crime. Unless otherwise specified, it is therefore always requires of intent (except as specifically set forth negligence offenses, for example, § § 222, 229, 306d StGB). If no specific level of intent required (eg " intentionally " ) always satisfies the intent weakest form of dolus eventualis ( conditional intent ).

The intent is for the reverse conclusion of § 16 paragraph 1 of the Criminal Code, the knowledge of all the factual circumstances, the required constituent elements, ie the constituent elements. The prevailing opinion, mere knowledge of the constituent elements is not sufficient, since on the one grammatically the will in the conceptual meaning of the word " intent " float and the other a will must be there always when someone commits an act having regard to the constituent elements. For this reason is the shorthand for the description of intent: knowledge and will of the facts realization. This simple formula is, however, criticized in the legal literature whether their brevity and inaccuracy. As a more precise definition is therefore usually the will to realize a criminal offense having regard to all its factual circumstances, ie material elements, is proposed.

The header must contain the essential elements of the pertinent causal history, at least in a conditional form ( atypical causal history, objective imputation ).

Degrees of intent

In order to delineate the Dolus- term (intent ) is divided into three stages:

For the intent - as for the other constituent elements - the Simultanitätsprinzip. This means that the intent must be at commit a crime, see § 16 in conjunction with § 8 Criminal Code. The offender must, therefore, knowledge of the past and current offenses and foresight of the future course of criminal act and have success of the offense. A just before the act (Latin dolus antecedens ) or after the fact (Latin dolus subsequens ) present intent is not sufficient for the adoption of an intentional act. Nor is the so-called dolus generalis, after which it should be sufficient that at some time of the offense was present intent, a case of intent.

For participants ( instigator, agents) to their intent must relate to both the intentional and illegal act as well as on their own Tatbeitrag. This is the time of their own Tatbeitrages crucial (eg at the instigation) of the existence of intent.

A mistake as to the circumstances of an offense (offense related error, § 16, paragraph 1 of the Criminal Code ) regularly enters from the intent, a punishment for the negligent commission of an offense remains unaffected. The prefix is omitted when not called mistake of law (§ 17 StGB), in which the offender is mistaken only on the legal assessment of his action. The impunity only occurs when mistake of law, if the offender could not avoid this error.

Eventualvorsatz ( dolus eventualis ) and conscious negligence ( luxuria )

The problem is the definition of the Eventualvorsatzes from conscious negligence. Both an intermediary acting with Eventualvorsatz and deliberately negligent offender expects namely regularly with the ability to meet designated in the law and circumstances may cause the occurrence of the factual success through his behavior.

According to the prevailing doctrine and jurisprudence of the Federal Court an offender is not intentional, but merely aware negligent if this seriously relies on the non-occurrence of a factual success. To this end, according to more recent view also includes psychological processes of risk displacement. In such a case constellations of the perpetrators suppressed mentally his idea of ​​the possibility of a successful entry.

When testing just mentioned special cases, all the circumstances of each case must be considered. A mere vague conjecture of the offender with the motto " Well, if so ..." is not enough for an affirmation merely negligent conduct. Rather, in those cases, a successful entry is not entirely far-fetched thought possible and at least considered acceptable ( endorsement theory to Eventualvorsatz ).

From the perspective of the Federal Court Eventualvorsatz is even assumed if the offender may indeed be undesirable in itself a success entry, the criteria to be endorsed theory, however, are met.