Mistake of law
The mistake of law is a mistake of the perpetrator of the illegality of his actions. A sub-case is the Subsumtionsirrtum.
The mistake of law is in German criminal law in § 17 of the Criminal Code (StGB ) and in § 5 Military Penal Code ( WStrG ) regulated. Similarly, the control is in misdemeanor cases taken (§ 11 sub-section 2 ).
§ 17 of the Penal Code reads:
In Austria, the mistake of law is called error of law. He is in 9Vorlage §: § / Maintenance / RIS search öStGB normalized. In Switzerland, is also spoken in reference to the previous law of a mistake of law (Article 21 of the Criminal Code / Art. MStG 17 ).
A mistake occurs when the offender does not know the ban norm, it considers invalid or incorrectly interpreted in the way that he looks to be in truth forbidden action as permitted by law. So the culprit is mistaken about the illegality of the act in its factual specific shape. On the knowledge of a particular injured Act, it is not on.
A counterpart to the mistake of law is called the delusion offense, even reverse mistake of law.
The German lawyer and author Ralf bumps used the term error of law in books and showed examples that some acts which are permitted to be falsely assumed to be prohibited.
Preventability; obviousness
A mistake can be the fault of the perpetrator in the case of § 17 StGB only be omitted if the error was inevitable. Avoidable the error as to the illegality is when the injustice to the offender as everyone was easily identifiable, or when the offender has not made known to the relevant regulations, even though he committed his profession, his employment or otherwise in the circumstances to have been would ( procurement of the necessary knowledge, for example through questioning by a lawyer ).
But inevitability is conceivable only in rather unusual situations and is in practice rare. One example was the first instance judgment in Mannesmann process. However, the Supreme Court disagreed with this decision on appeal explicitly. Also in the European ( and German and Austrian ) Antitrust an apologetic error of law is very restrictive recognized, such as in the case of freight forwarder collection charge conference.
The strict regulation of § 17 of the Penal Code is considered to be justified because the offender the categories of right and wrong does not distinguishing between; he lacks the knowledge or insight into the injustice. In contrast, the control is in the military criminal law: a soldier commits a crime on command without a command emergency exists, shall take him only a liability if he realizes that he executes a criminal offense or is this obvious in the circumstances. The reason for the lenient treatment of the acting on the orders of military personnel is to be seen in the fact that an instruction, especially in the field, must be implemented immediately and the soldier does not have the opportunity to gain knowledge in the same degree as a civilian on the legality of his actions.
Austrian law speaks instead of preventability of culpability, but thinks in the same thing.
Demarcation
In contrast to the facts mistake (§ 16 StGB) the offender is wrong here or not circumstances ( facts and law ), which include a criterion, but about their legal assessment of the criminal standard. The more commonly used in Austria and Switzerland notion of mistake of law is not helpful for this distinction, because errors have legislation to a criterion ( normative constituent elements ) include not constitute prohibition errors (or errors of law within the meaning of öStGB and CH- CC). A related error is the mistake of the permission error.