Trespass

The trespassing is the intentional violation of constitutionally protected property of the inviolability pacified possessions. The trespassing is in Germany - despite its classification in the seventh section of the Criminal Code ( " offenses against public order " ) a criminal offense, which only protects the individual right house.

Legality

The offense of trespassing in Germany is governed by § 123 of the Penal Code and in addition to the basic offense ( § 123 StGB) also includes the qualification of the heavy trespassing ( § 124 StGB).

Constituent elements of

The event is divided into two types: state default, the deliberate penetration against the will of the person entitled in more detail certain premises or the feeling of not- removal from such premises, despite the request of any interested party. These premises are apartments, business premises and other pacified possessions or enclosed spaces that are intended for purposes of the civil service or transport.

Examples: Someone enters despite a ban from the house a retail store; someone is hiding at the close of business in a toilet.

Pacified possessions are areas that are secured in a manner of apparent through boundaries against arbitrary entering. There is disagreement in the law, how strong must be the pacification protection ( walls, fencing, fence). The pacified property is not intended for living. It covers therefore condemned buildings and unfinished buildings, provided they are pacified by appropriate safeguards. Also movables which are used for human occupancy, are of trespassing includes (boats, ships, cars of a market trader, caravans). Serve the movable property in the first place not to stay, so a house right is however not considered ( "normal" cars, cars). For this feature is an extensive casuistry, ie many individual case judgments before.

For the penetration into a space is sufficient that the perpetrator unjustified part of the body can get into the pacified area. Stepping on the entire body is not necessary; enough is already the " foot in the door ". What is not covered by the criminal law protection faults that occur even outside the home or inside the property or on the edge: The punching or kicking against a door and Störanrufe are not covered by this legal fact.

Consent

A consent of the legitimate house right holder already excludes the facts. A general access permission for buildings with public sand rank (eg department store ) is sufficient for this purpose. There is disagreement on the one hand, to what extent, does the thief who enters the store to steal according to § 123 StGB. Here, it must be considered as the thief behaves outwardly. If he behaves neutrally and a third party may not realize that he wants to steal something, he falls under the agreement also. A house rules with the words " The general access permission does not apply to people with tortious intent " is irrelevant, since the condition is aimed at a general to persons. However, an individual house ban is remarkable.

Even the consent of externally visible conditions can be made dependent, such as the presentation of a movie ticket.

If the offender has obtained an agreement with the help of illusions, this is generally irrelevant since it depends only on the will of the house right holder at the time of the grant of consent. Nevertheless, the offender can according to § 123 para 1 Alt. Make 2 of the Criminal Code offense, provided he stays without power in the building, so for example, after he was asked by the house owners to go.

(Counter) measures

As part of the site regulations may be imposed under certain circumstances, a ban to stop a trespass or stop or prevent. The landlord is entitled to enforce the ban by force if necessary in the context of self-defense ( § 32 StGB).

Competitions

The trespassing frequently encountered tatmehrheitlich along with typical theft offenses, such as burglary or shoplifting, who qualified § 124 StGB can tateinheitlich possibly even with robbery offenses, on the other hand also coincide with assault, property damage or bodily injury.

Punitive, statute of limitations

For trespassing within the meaning of § 123 of the Criminal Code, the maximum penalty is one year imprisonment, resulting in a three-year limitation period under § 78 of the Criminal Code.

Criminal Legal

The trespassing is in the variant of the basic facts private prosecution offense according to § 374 para 1 CPC and needs of the criminal application of the injured party or his relatives. The trespassing is next to suit under § 395 Code of Criminal Procedure capable.

Development approach

Since the German criminal law is based on the principles of the Reich Criminal Code of 1871, "modern" forms such as the commission of stalking were threatened inadequately prosecuted by the year 2007.