Another case of recurrence "helmet law"
A and B work in pairs on a small site of her boss (C). A working on scaffolding and B will throw a stone from the top on the head. First and foremost he wants to B so miss a lesson. For B A friend has the spread. A look from above the new helmet with the B constant, since C has bought this reluctantly after a visit to the building inspection. Because of this industrial safety helmet does A, that B will die by the falling stone. B if at least one concussion, bruises or Head will win, not looking A safe, but it is not matter. Assume that the helmet be discarded after the impact of the stone because of the pressure load must go from A. A missed but for himself unexpectedly because of the height of 5 meters of its target. The stone falls in the sand. "B" seems to have noticed anything because of his ear plugs and does not move from the spot. Since A has no more stone available, he grabs after some hesitation, a lying next to him randomly tiles of approximately equal weight to B but to take yet.
is at this moment by C and A cry from below, it's better to watch that A is probably gone mad. A makes his decision B throw to fall and finally lays the bricks immediately to help because he does not want to hurt B in front of witnesses and would get no case more trouble with his strict boss. C would fire him determined in a second litter. When A is still wiping the cold sweat and want to leave the framework, C takes the helm of the B and goes back to the trailer. Only now also see A, that the helmet was associated with a work jacket on a pole and raised up from above the appearance of a person. A extremely angry and frustrated going into the lunch break.
Check the criminality of A in a legal opinion!
Editors note: qualifying events, such as § § 211, 224, 226, 227, 304 of the Penal Code, and negligent offenses are not to be examined. Check so only basic facts!
A. § § 223 para 1, Alt. 1 and para 2, 22, 23 StGB attempted assault of the A to B by the expense of the stone throwing
A made liable to prosecution for assault if he has not completed (I) the crime and the attempt the assault is punishable (II) by the Assen case of the stone (a) after its introduction (b) direct damage to health or physical Ill-treatment of B had set, (III) illegal and (IV) acted negligently, and (V) is not withdrawn voluntarily.
I. preliminary
a) No completion
The offense is § 223 of the Criminal Code was not completed because no one injured.
a) criminality of the attempt
The test of § 223 of the Penal Code is under § § 23 para 1, 22 Section 1, 223 para 2 of the Criminal Code punishable as for this offense (§ 12) express the criminality of the experiment is arranged.
II fact.
a) intent / Tatentschluss
A has Tatentschluss if he wanted to reach a health risk under § 223 para 1 of the Criminal Code of B by his action. An adequate idea is already available, if A recognizes only the possibility of violating B. A turned a concussion and bruises as to the relevant medical categories morbid conditions Although not present in certain consequence of his dropping of the stone, but a natural option.
If, as here there is no certain knowledge, is the Tatentschluss to affirm any case where a detailed contentious positive element of will is the decision of the offender (so called dolus eventualis). The indifference of the A to the health damage of B shows that the injury although he does not arrive, but she is quite appropriate. This is an equitable take into account in the legal sense and therefore sufficient for all theories voluntative intent element.
A is therefore determined to act.
b) prepare just
A has the offense of attempted assault achieved when tested immediately after his presentation to the point I Tatausführung approach instead, as it the stone on the helmet the B cast. His idea is based on the Tatausführung of injury to B, although the stone throwing is a disabled object of the crime "Tatausführung" within the meaning of § 22 StGB.
first Tatausführung arguments against the disabled object
is nothing to prevent an execution can be disabled at the object under no circumstances lead to completion. Therefore, one can doubt that here at all an act is present, which could be executed. It is also at risk for a preparation on the disabled object not a victim, so that no protected right to be defended examined by the punishment of the experiment.
second arguments for the attempt on disabled object
The textual argument does not convince because the word "Tatausführung" must not be taken out of context, but together with the phrase "after the performance" of the offender to be read needs. In his mind, the offender is no limit as long as he means it seriously to achieve the success somehow by its actual plot. But the decisive factor is a systematic argument from the law: in § 23 para 3 of the Criminal Code, even the grossly ignorant attempt at fundamentally unfit object of the crime is punishable made. Only the final decision on whether and how the punishment is set at the level of sentencing in the judicial discretion. Moreover, is logically the unsuitability of the experiment considered imperative as the completion has failed to show any cause.
third intermediate result
Therefore, it is imperative that can be rolled over to action on disabled object can.
4th subjective-objective theory
A is in accordance with this in § § 22, 23 Criminal Code law enshrined subjective-objective theory any event immediately recognized when he is to his idea of fact, the course of events from the hands, so he already believes everything on its part for the success achievement required to have done. However, this is necessarily only with extremely short causal curves, eg shot, blow, throw and is controversial with time extended causal curves.
Here we have the stone throwing an act that leads to the idea of A if necessary to readily
in fractions of a second success, the head injury in B,.
A has therefore prepared immediately with the execution of the actual offense.
III. illegality
justifications are not, therefore, did unlawfully.
IV debt
standards are speaking against the debt is not being met. A therefore acted with guilt.
V. resignation acc. § 24 para 1, 1st Alt. Criminal Code as a personal criminal pleas based
A is the attempt of killing the A retired amnesty if he voluntarily gave up the execution of the deed, as he put the tile back.
a) No attempt failed, giving up possible or failure?
A is indeed just abandoned him when an abandonment of Tatausführung literally at all possible and the deed was not already failed (sg failure). The act has not failed when completing the the Tatausführung the offender still poses as possible.
first Einzelaktstheorie
The proposed Tatausführung A is no longer subjectively possible if the "Tatausführung "already completed, with the throwing of the stone was and is the throwing of a brick, not as the continuation of the same act, but as a new action (execution), a new dock-is (sg Einzelaktstheorie
).
second overall view doctrine
we understand the Tatbegriff and thus further the "Tatausführung"
and considering all available adapted devices, there is in any case before the same Tatausführung if A success and without the essential spatial and temporal caesura after his performance still can make the relevant date of the decision (to leave the "withdrawal horizon" after the so called total consideration doctrine
). A stand here known by him within range of roof tiles available and he could throw again and within a few seconds. Therefore, would still make the same act.
third Sets Tatplantheorie
the emphasis on subjective Tatplanung of the perpetrator, the act failed rücktrittsausschließend when the initial Tatplan fails the offender and this plan provided no alternative off (on the "planning horizon" after the sg Tatplantheorie
). Here A had only planned to make the first throw. The tiles came as randomly stopgap used. Therefore, after the Tatplantheorie would also already have a different, new Tatausführung.
As the total consideration to another theory about possibilities
[4] different
result comes, it must be decided which option to follow.
4th arguments against the Einzelaktstheorie
Einzelakttheorie is called Against the objection that they pull apart quixotic life processes common to a fractalisation of Tatbegriffs out and a narrowing of the cancellation option out.
5th arguments against the so-called Tatplantheorie
speaks against this theory that they privileged those offenders have thought through the increased use of criminal energy to multiple Tatablaufvarianten. The spontaneous or simple-minded and thus are also less dangerous offender under this theory does not benefit from the cancellation option.
6th arguments for the so-called total consideration doctrine
is preferable in the above mentioned reasons and to the victims as much as possible through wide withdrawal options as an incentive to adjust the perpetrator of the attack to protect the overall view of teaching.
7th intermediate result:
would then attempt the A withdrawal in principle capable.
(Moves to the problem of the so called failure acceptable results in the voluntariness of the resignation in that respect no different result .) b)
A cancellation action was thus a further embodiment just begun to give up the deed. This he did, as he lay back on the tile instead of the supposed B to throw.
c) Voluntarily
The resignation, however, leads only to the penalty waiver if it was voluntary.
The resignation is voluntary, if it is made up of autonomous subjects, ie, from a motivation that may well be influenced from outside, which is from a psychological point of view but also for the perpetrators than their own decision and he is not strange feeling. The resignation is involuntary if the offender is exposed to such strong psychological pressure from other people or circumstances, that he no longer feels free, but his decision is virtually forced upon them. This should apply in the case group the subsequent increase in risk. If fear of discovery by third parties such as offender need to meet him from the consequences so severe that the possible continuation would indeed bring considerable disadvantages MI,
.
Here, A decides to resign because he by the occurrence of C determines to stop him from asking real fear of discovery has indeed. This concerns not only the
criminal consequences, but also
the negative consequences for his employment by trouble with the boss. These factors are mentally so strong that it the sweat
breaks out. Therefore, A is not resigned voluntarily
.
Interim Results: A has thus Alt to § § 223 para 1. 1, para 2, 22, 23 of the Criminal Code criminalized.
VI. regard to the sentence: A rough
foolish attempt to § 23 para 3 of the Criminal Code was not available, for a confusion of the helmet and the jacket with the real B was not from a height of 5 meters, completely absurd.
B. Attempted criminal damage to the helmet by A at the expense of C according to § 303 para 1, para 3, 22, 23
(I.) The helmet was not damaged and attempted criminal damage is also a crime, § § 303 Section 1, paragraph 3, 22, 23 StGB.
(II) (a) the C belonging So for A strange helmet that would be after the performance of the A on hit damage certainly was, because he can no longer be used as intended as Headgear, when he received a severe blow . A had also in this respect because Tatentschluss but in the form of certain knowledge. To (b) direct preparation
(III) is unlawful,
(IV) debt and
(V) Withdrawal applies the above in accordance with A. II b) to V written as B and the helmet after the presentation of A is a necessary unity of form as object of the crime.
intermediate result: A has therefore committed an offense also for attempted criminal damage.
C. final
A has made it illegal for attempted assault at the expense of B in coincidence with attempted criminal damage at the expense of C, § § 223, 303, 22, 23, 52 StGB.
