Justification (jurisprudence)

Justifications are authorization rules that allow a prohibited per se action in individual cases of exception.

Public law

After the rule of law the people are granted fundamental rights in the form of human and civil rights. These are designed as a defense rights of citizens against the state. However, the granting of these rights can not be unlimited. Rather, the state intervenes through its actions often in these rights. However, these interventions must be justified, they therefore require a ground of justification. Constitutionally fundamental rights are limited by their so-called barriers. In general, the bounds of the fundamental right to be determined by law. This barrier is also called legal reservation or - referred to as parliamentary approval - sharper. In principle, the Constitution itself is capable of formulating barriers. These barriers are the so-called constitutional inherent limits. The third barrier fundamental rights come into consideration other. If two fundamental rights are balanced with each other and are mutually restricted, so this is referred to as so-called practical concordance.

Criminal

After the German three-level offense structure ( in the sense of not only isolated or formerly represented action doctrines in criminal law ) alone shall violating a penal law ( the so-called existence of facts constituting ) not the culpability of the offender.

Rather, already on the second major test stage, the illegality of the act shall be excluded if the offender plays a justification. Injustice is not committed if the offender can appeal to such a justification. German criminal law knows many justifications that are not enumerated completed.

Although these are substantive rules, they are not necessarily in the Criminal Code, but are part of a civil or public law; Justifications can also be caused by the common law as they engage in favor of the offender.

All justifications in common is that they exist objectively, if a particular hazard, an attack or otherwise injurious event is to be averted. Subjectively is necessary that the culprit, who refers to the justification, is also with the will to counter such a threat or attack.

If no defense or rescue will of the offender is present, the act is considered to be illegal and punished the perpetrators. It is debatable how the offender shall be punished.

A view refers to the fact that the success of the offense is at least objectively, in accordance with the law, in sentencing a. This opinion holds to the illegality of the act in the absence of subjective defense will and punishes intent and negligence actions as a consequence.

Another view draws on the foundations of criminality attempt to find a solution. In the context of § § 22 et seqq a distinction between action and success injustice takes place. There has not occurred while attempting to success of the offense, will also eliminate the success wrong. The experiment, according to § 22, § 23 para 2 in conjunction with § 49 StGB be punished more leniently. Because at a criminal trial, the action is wrong only punished. Transferred to the lack of defense will, this means that the offender is acting illegally ( act wrongly) the success of the offense but because of the present objective conditions of a justification or excuse reason is not unlawful or culpable, therefore the success wrong. The second view takes as a consequence of the conclusion in the absence of defense will, but otherwise present objective conditions, to punish the act as an attempt. The perpetrator makes consequently the experiment indeed punishable if it is an intentional act. If a Fahrlässigkeitstat based on already enough for an excuse or justification of the existence of objective justification or excuse, as there is not an attempt to Fahrlässigkeitstat. The second view can be rejected because this, taking into account the system of action and success injustice of the Criminal Code, which is also the attempt offense based.

Some justifications are:

  • Self-defense, § 32 of the Criminal Code
  • Justifying emergency, § 34 of the Criminal Code
  • Defensive ( defending ) emergency, § 228 BGB
  • Aggressive ( attacking ) emergency, § 904 BGB
  • Self-help, § 229 BGB
  • Protection of justified interests, § 193 StGB
  • Consent justifying consent
  • Presumed consent
  • Hypothetical consent ( debatable )

No justifications are:

  • Consent (for it already includes the offense of )
  • Of coercion emergency ( 's excuse )
  • The apologetic emergency ( 's excuse )
  • Excess of self-defense
  • The parental right to punish ( by hM with § 1631 para 2 BGB aF abolished since 2000, aA about cooling AT, § 9 para. 77b )
  • Insanity (this may be Schuldausschließungsgrund )
  • Strafunmündigkeit ( is Schuldausschließungsgrund )
  • Self-defense, provocation

The misconception about the actual existence of a ground of justification is the fact permission error.

Civil law

In the area of tort law, the legislature has regulated the obligation to pay damages for torts. Again, the illegality of the action is first indexed as in criminal law by the realization of the facts. Also excluded is the existence of facts constituting the extent that intervene as justifications. The tort law relies on all the justifications of the legal system. However, since it is all about the restitution of damages is partly an obligation to pay compensation for the damage caused in the emergency situation damage.

  • Law of Obligations ( Germany )
  • General penology ( Germany )
  • Fundamental Rights ( Germany )
Custom (law) Excuse (legal)
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