"drinking contest"
in the bar "Eye T" called the regular guest host out the A (W) to the drinking contest.
W said on the condition that A is charged. It should be drunk tequila glasses of water (0.3 liters), the W should take each case on the request of the A to the table. W but secretly exchanged his glass with a chance of standing on the table glass with water so that only A first drank tequila with 40% alcohol content. When A saw that with W showed no effect of the alcohol, he thought to himself: "That can not be, that I already as bad off" At this time, although A tipsy already, but still fully responsible for his actions because of some.. previously enjoyed beers and tequilas was his blood alcohol concentration (BAC) for about 1.5 per thousand. A so ordered a second round of tequila, this time with really drank W. A called W, the glass - as A - "in Ex", so drink up on a train to W "to break". After A had emptied the second glass so he was very drunk and was still ongoing because of the burst effect phase of the first tequilas significant deficits. This meant that A fell from the chair. He got up again, however, and ordered W babbling with a third round of tequila. At this time, the BAC at A about 3 per thousand. The third glass drank A in a train. W was of the recently enjoyed drinking so fast nor bad, so he left them his glass.
W held the first two tequila glasses, the A has been emptied, for health risk, especially alcohol-A was used to. As W is recognized before the third round of the fully drunken state of A, he has not ruled out a slight alcohol poisoning in A.
lost after the third round A but with 4.8 per thousand BAK consciousness, and fell again by the chair to the floor. The dishonest winner W, however, had only 1.3 per thousand BAK. When W leaned over the supine A, he realized that A rolled his eyes and now Vomit threatened to suffocate.
W was A, however, in joyful expectation of his death are, because he could never stand still. A actually died within a short time.
he had - which would easily have been possible - A shot to the side and called a doctor, A would have been saved with a probability bordering on certainty. The see through and the only drunken W.
Editors note: Check the criminality of the W in a legal opinion!
qualifying events (also § 227 and § 211 StGB) or privileges no need to examine. § 221 StGB either.
Extract from Licensing Act: § 20 GastG General prohibitions
is prohibited ...
second in pursuit of a trade alcoholic drinks to be seen to give drunks ....
solution:
advice
A. § 223 para 1 Alt. 1 - first round - bringing the glasses and drinking water by W
W has made him guilty of an offense if he
(I) A by bringing the tequila and their own drinking glass of water at the Health damaged and in this regard has deliberately
(II) unlawfully and
(III) acted negligently.
I. offense
A suffered by the drink up the tequila glasses severe alcohol poisoning, which proves his BAC of 4.8 per mille. A fact Success is, therefore.
was not in bringing the glass and the water drinking in the first round for the noise of the A and all subsequent episodes until death, which includes any event, as a transitional stage of alcohol poisoning, but damage to the health, contributed to this situation, because A is not alone wanted to drink.
This action is only a "health harming " if the success of this action is objectively attributable W. This is the case when W has created with his conduct was unlawful threat, the typical risk currently achieved in the concrete success. For some groups of cases is recognized that they do not meet these general criteria unclear. One is the "responsible self-endangerment free 'based on the idea that the responsibility of others as ends where the parties begin. A successful implementation promoting the factual review is not illegal then, if he only makes another, directly harmful act to make itself over the infringement and to threaten the liberty itself responsible. Not the one who supports the decision of the person concerned or allow harm to health, but the person harms himself voluntarily
The voluntary self-Get drunk of the A is basically a free and responsible self-injury breaks, therefore, the attribution of the patrons - the W - from, no matter who provides the alcoholic beverages or otherwise promote the motivation of the drinker. Therefore, the mid Rinken and serving is basically no damage to the health of another.
One could but think, but shift the responsibility back on the W, because it pretends to be A mid Rinken behaves, in its broadest sense unfair. Legal anchor point would be § 25 para 1 2 Alt. Criminal Code or at least its principles: committing a crime by the victim as " another "within the meaning of that provision. That would be the case if indirect perpetration EXIST by energizing and taking advantage of a mistake.
The motivations alone does not change the responsibility, if it is not enforced. An illusion, in contrast to coercion, therefore, only considered if it is legal expert based [1] so only if the risk transferee the potential hazard is not obvious or if it does not without Another obvious danger is deceived [2] . Here, W is not the A deceived about what and how much drink A. A rather knew exactly what he did to himself. That he drank only because W communicates rank does not change anything because this was his free choice, and even his own idea [3] .
II result
therefore separates a personal injury through the drinking water by W and bringing the glass of tequila to the A [4] .
B. § 223 para 1 Alt. 1 - second round - bringing the glasses and Tequila Drinking by W
W has made him guilty of criminal when he damaged
(I) A by bringing two of his glasses and drinking tequila in health and in this respect with intent,
(II) unlawfully and
(III) acted negligently.
I.
event that W is the second round brought and drank his glass is possibly mitkausal for success, since A may have only because of the further competition for a second glass and drank it a third glass. But even that is not safe, as A in the third round without W drank. In any case, but the cause of the alcohol poisoning, W that brought the second round. But this is irrelevant if this voluntary exposure cancels the allocation. In fact, the A and W is deceptive not even and A is also not the time for action irresponsible drunk. Therefore breaks in the second round of the allocation for drinking water free from self-endangerment charge [5] .
II result
Therefore, W is due to the bringing of the two glasses of tequila and the consumption of which one in the second round of any wrongdoing.
C. § § 223 para 1, 25, Section 1, Alt. 2, by W in the third round
W, but made him guilty of an offense under § § 223 para 1, 25 para 1 in conjunction with Alt 1, Alt 2 of the Criminal Code if he
(I) by the be the third glass of tequila brought damage to the health, and in this regard intentional
(II) unlawfully and
(III) acted negligently.
I. offense
a) health damage
The necessary success is available, see above AI W unfolds here physical activity, as it has the A, the third glass of tequila [6] . The focus of culpability is therefore on doing, but the omission.
After an attribution to the top W retired because of their own responsibility of the A at the first two rounds, could be here in the third round of the health damage of A - that is, the alcohol poisoning - are attributable to the W.
The transfer of goods - by sale or rental, by their nature, bring threats to themselves or dangerous undertakings can be used such as automotive, medical, chainsaws, is only a legally disapproved of risk creation, if for the transferee of those goods, the potential hazards not readily apparent is [7] . As A drank the last glass, was then only against a still-free self-endangerment charge, if A was still able to make a will. That is definitely not the case if he is very drunk. This is supported by § § 20, 21 of the Criminal Code, the offender from responsibility in any case partially exempt. A is already very drunk. It shows significant deficits by the fall from the chair and the difficult language. So ruled the objective of non-attribution.
But is supported by the statutory provision of § 20 para 2 GastG which prohibit the landlord just auszuschenken to intoxicated persons. A itself has not recognized the danger since he is already drunk and was not capable of discernment. However, took the A harmful act immediately in front of himself.
The attribution of the behavior of A to the W via § 25 Abs 1 StGB (" by another " indirect guilt), if one understands this standard as a constitutive attribution rule. Otherwise, they make the attribution of ontological result in strange behavior made clear when the standard is interpreted as merely declaratory [8] .
There is therefore a legally disapproved of risk creation. W is the fall following the last drink of alcohol poisoning as a health damage attributable.
b) intent
The intent of the W differs according to § 16 paragraph 1 StGB from when W did not know the circumstances that belong to the legal facts. The actually performed act not presented and intended. After the concrete theory and the "Wesentlichkeitstheorie" of the BGH that is the case when the presented causal process and success far from the actual events differ, so that despite fulfill the legal criteria equivalence a different legal assessment of the act is justified. The drama develops much more dramatic than initially assumed W. The alcohol poisoning is fatal. The W has at the relevant time not act intentionally. Nevertheless, in the fatal alcohol poisoning is the "normal" poisoning mentioned as a transitional stage and the death of W is not exactly allocated under § 223 paragraph 1 StGB.
W also for the other objective characteristics acted intentionally because he recognized the state of A and it still operated. His win was more important to him than the health of A. So he had all the conditional intent, even if it did not mattered A to poison and he may have known this and not sure.
II result
W acted negligently and therefore A has been damaged by the operation in round three on health.
D. § § 212 para 1, 13 paragraph 1 StGB omission of W by leaving behind the unconscious A?
W has made it illegal for premeditated murder when he
(I) was unconscious as A refrain, to avert the death of A as a success, which is part of the offense of § 212 para 1 of the Criminal Code, and if he had legally responsible for ensuring that the death occurred and if so not the failure to Implementation of § 212 para 1 of the Criminal Code by a corresponding action and intent in this regard,
(II) unlawfully and
(III) acted negligently.
I. offense
a) success, quasi-causal, physically real action available
W has failed here, A to turn the page and call a doctor. These actions would have prevented even with the high probability of success. He was also physically easy to execute these actions because it was bad, but no noise-related behavioral limitation had occurred.
b) guarantee for the return
B but only legally responsible for ensuring that nothing happens A click through this self-injury, when he had a general duty on the alternative of § 323c beyond duty to prevent the death of the A at this point.
first Risk community
Such a requirement can watch as a duty to protect (protector Garant), on A, resulting from a special trust. This is believed to trust and risk communities, such as close, joint planning or consultation incurred risk community among mountaineers [9] . There is a serious deal taken to assist each other, which is also supported by a certain moral integrity of the sport.
such a loose and devoid of any moral significance compound, as is the Zechgemeinschaft, lacks the social and ethical relationship [10] . A mandatory Füreinandersorgen stand up and gives this not from the Zechgemeinschaft. The mere Zechgemeinschaft is no special agreement is not a risk community.
moral misconduct relating to the human relationship in the Zechgemeinschaft are therefore generally irrelevant. A regular on the standby duty increase Responsibility for the Mitzecher is from this idea, rejected. Then W would have no guarantee of A's position to control drinking behavior.
favor of this last view and that is to be feared otherwise a limitless expansion of the offense to false criminal omission. If any more or less random encounter or acquaintance may lead to a guaranteed position is that with the principle of certainty from Article 103, paragraph 2 GG hardly compatible and it is contrary to the legal concept leaves little room for real criminal omission as § 323c StGB.
There could be souvenirs here that a guarantee for the return community from danger would arise, as W was unconscious after the last drink. For the non-binding Zecherverhältnis is not the consciousness a mine is now a completely different closer relationship.
second Ingerenz
W but has a guarantee for the return of Inge Renz, if earlier conduct in breach of duty exists, the A has just launched into the death threat, before W was able to save the A. is now recognized that a mere causal earlier conduct is not constitutive Ingerenz [11] . If you can already be sufficient merely a socially inadequate earlier conduct, is already a guarantee for the return is due if the dishonest Mitt Rinken is considered inadequate. Even this is problematic because there is no undisputed rules of the common drinking contest. If you come here, but a socially deviant behavior in the broadest sense, this would lead to this solution possible, a guarantee for the return. Against this very broad interpretation of § 13 paragraph 1 but the talk already Zechgemeinschaft arguments for indeterminacy and Article 103, paragraph 2 GG accordingly. are rules about socially inadequate behavior in a pluralistic society it any more. Legally, the handle may be unconscionable, which occurs at least in § 228 of the Criminal Code, which describes a related problem. A drinking game is not in itself morally already, so that a Deception here is not immoral. The dispute may be left open, however, if W wrongful another reason for the A helplessness contributed.
Here W not only as non-binding fellow drinkers Sponsors of the event, but he has special duties from his position as host, resulting from the law.
The previous activity does not cause a guarantor for the diversion of success, if the landlord keeps within the limits imposed by GastG [12] . If he fails, however, that he makes a contrario garant liable for the resulting resulting at least in typical hazards [13] .
C violated here, but just against the GastG by the recognizable and from himself so fully recognized nor drunken W set before a large glass of high-proof tequila. be given
between this breach of duty and the success must also search for a specific view of the danger context (Pflichtwidrigkeitszusammenhang). The ban on alcohol to intoxicated auszuschenken is just the drunks from the health hazards protected by excessive alcohol consumption. M. h. After the Pflichtwidrigkeitszusammenhang but by free responsible action of the victim are locked, such as when the victim drug are given in the fasting state and thereafter assumes its own responsibility, even the drug [14] . But here A is on the relevant Put the last glass tequila already insane, so there are any disputes between BGH and literature.
c) intent
W A has also deliberately let down, because he recognized the danger of death and took his death approvingly accepted.
II illegality
justifications are not available. Therefore W acted illegally.
III. Debt
a) reasonableness
C would have had to threaten not have their own legal interests, to save A. Him a deal was therefore reasonable. That he would eventually rescued by the help of a witness for the previously committed assault and promotes its own burden is irrelevant, since the expected penalty in consideration of the life of A is negligible, but the offense can be even lower, arg. § 211 StGB "masking intention" (which is not necessary to consider here).
b) debt exclusion
debt exclusion are not before. W acted so fully at fault.
IV matching clause
The failure must follow according to § 13 paragraph 1, in fine, the killing of the Criminal Code within the meaning of § 212 paragraph 1 StGB. Except for handwritten offenses is the only exception in the case not so. For such an exceptional case here is no evidence.
V. result
Therefore W has made a criminal offense under § § 212 para 1, 13 StGB.
E. end result / competitions
One possibility is that § 212 para 1, 13 StGB the previous injury displaced by doing already in the way of competition laws as mitbestrafte predicate offense because the injury only a transitional stage to the next was on her death [15] . However, it also held that the offenses are Tatmehrheit [16] , because otherwise it would not clarify the cause of the injury by doing compared to a mere omission with regard to the killing.
absence of different results, the dispute will be decided. speaks for the latter view, the concealment of murder in the form of an omission is hardly possible would be if the perpetrators can be damaged by the injury victim to die in order to cover this assault.
If the injury merely pass offense to killing in any single action will displace the previous injury completed by the murder but even in the way of competition laws. The latter view would thus from the Ingerenz because § 223-related murder under § § 212, para 1, 13 Criminal Code in the compared to manslaughter and assault in the commission of guilt by an act increasing the total penalty under § § 53, 54 StGB result.
help here However, a legal comparison further: anyone who violates a person first and then kills by a second act, shall be punished as a rule because of two actions. Taking the equality of action and omission by § 13 StGB seriously, the failure after injury is also another fact, which is why there are no concerns at Tatmehrheit, especially if the perpetrator as here, two different Tatentschlüsse fast.
W has therefore to § § 212 para 1 in conjunction with 13 paragraph 1, 2, § 223 para 1 Alt. 1, 53 of the Criminal Code criminalized.
[1] that regard is the sole responsibility Self-endangerment treated differently from the justifying consent, according to the HM all based on deception causal error is considerable. Consent is necessary but only at the level of illegality, after it is already clear that it was the perpetrator of the factual basis and had control over the infringement, so perpetrators.
[2] BGHSt 37, 106, 114
[3] Even if one ignores for extremely conservative view of the doctrine of objective attribution, W here has any event have no intention, as it had not think of alcohol poisoning A.
[4] also negligent inspection will not be granted because the allocation is subject to the same rules as for intentional tort.
[5] Again, W also does not have any idea about the health of the A, so that another solution would be no intent .
[6] After the design is represented at the display of physical activity generally Action. Even the conception of the Criminal Code § 24 shows that the focus of culpability only in the exceptional case of failure, although it is traded. Such is the case here.
[7] BGHSt 37, 106, 114
[8] This would be consistent if one starts from the principle objective of formal doctrine and that under § § 25 et seq modified. After Tatherrschaftslehre and the subjective approaches of the offender is likely to be on a law offshore rating level. § § 25 ff StGB draw that conclusion only after then.
[9] BayObLG 98, 97
[10] BGH NJW 1954, 1047, 1048th
[11] Lackner / cooling § 13 Rnd. 11.
[12] BGHSt 19, 152; Roxin NStZ 1985, 320
[13] See OLG Saarbrücken (4th Civil Chamber), NJW-RR 1995, 986: § 20 para 2 GastG only triggers a ban auszuschenken alcohol to a guest if "the influence of alcohol has obviously achieved such a degree that the person in question after reasonable assessment does not behave more responsibly can ". Significant, but in terms of § 221 StGB, BGHSt. 26, 35: When the drunk reaches a guest host for the guest clearly such a degree that he is no longer master of his decisions and can not take responsibility for themselves is to start from a position of guarantor of the innkeeper.
[14] Stree, JuS 1985, p. 179, 184
[15] Schönke / Schroeder / Stree Prep § § 52 ff
[16] BGHSt 35, 116; Joecks § 211 Rnd. 58 ff, 60 mw N.
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