The poacher (W) want to ask the Ranger (R) on his morning spot speed trap. Given on a forest trail near the lodge digs about 1, 40-meter deep hole, which he expertly covered with branches, a network and leaves. W firmly believes that F is at least the ankle sprain or break. Because of the depth of the hole but that W expects that F climb out themselves anyway and can crawl or hobble home.
W proof that F is always the same Time this approach with the district uses gears. W will control the next morning one hour prior to the transition area of the F case. The road looks very natural and W away satisfied. Since animals at night but the highlight of mine have moved, W is wrong but has the exact location of the trap and fall into it himself after the next bend.
W sprained his foot slightly and therefore the whole thing sorry. Condemn the fallen in the hole coverage of the case so not restore, although it would be easy. W frustrated sneaking home. He believes that the case is now open no longer a risk to a person. In fact, F is also an hour later in the open grave, because he observed woodpeckers in the trees and does not on its way. injured by a miracle and it is not F with the terror. He can then fill in the pit by forest workers.
Editors note: Check the criminality of the W in a legal opinion!
§ § 239, 240, 224 of the Penal Code are not to be examined.
second That here the act of the victim must come to, is itself if you were to ask the essential cooperation of indirect perpetration [2] problems. For the F has as a tool against itself, "no quality, and W by the perpetrators known to him only camouflage the mine over the infringement force of superior knowledge.
third If you as the victim in almost every action necessary with the person acting in figure holding the indirect perpetrator is needless, it is also attributable to the present certainly. F Whether the event approaches or whether the risk of moving towards him, can not make a difference (The court is working so far with "the principles" of indirect perpetration [3] without further explanation.).
W therefore had intent to commit bodily injury. III. illegality
IV debt
A. § § 223, 22, 23 attempted assault of W is at the expense of the F
W by digging and camouflaging the trap (and the removal of the supposed location of the event after the patrol [1] ) for attempted injury to § 223 para 1 Alt 1, section 2 of the Criminal Code punishable made if
(I) the act is not completed and attempted assault is generally punishable (§ 23 I StGB) and he
(I) the act is not completed and attempted assault is generally punishable (§ 23 I StGB) and he
(II) to (a) of its performance (b) directly to any physical abuse or damage to health attaches (§ 22 StGB) and
(III) to be unlawful and
(IV) guilty of acting and
(V.) not resigned amnesty from the trial (§ 24 para 1 Alt 1 or 3 of the Criminal Code)
I. Preliminary
a) The crime is not completed, because the infringement of the W self-injury is non-punishable.
b) The test is a simple assault after old § § 223 para 1. 1 paragraph 2 in conjunction with 23 para 1 of the Criminal Code is a criminal offense (§ 12 StGB).
II event
a) intent / Tatentschluss (+)
first W had Tatentschluss if he idea of a physical abuse or damage to health by his success that the F wanted to achieve action. W has Tatentschluss if he wanted to achieve in a physical idea of the damage to health or ill-treatment F on this achievement by his action. W, presented a sprain or a broken ankle and wanted to observe. Treatment immediately as these are conditions under the relevant categories of medical health. W wanted the F this injury just tightens the fact that he would fall into their own by the action of W excavated pit. After W's idea of success is, therefore, identifiable and causally attributable to his action.
second That here the act of the victim must come to, is itself if you were to ask the essential cooperation of indirect perpetration [2] problems. For the F has as a tool against itself, "no quality, and W by the perpetrators known to him only camouflage the mine over the infringement force of superior knowledge.
third If you as the victim in almost every action necessary with the person acting in figure holding the indirect perpetrator is needless, it is also attributable to the present certainly. F Whether the event approaches or whether the risk of moving towards him, can not make a difference (The court is working so far with "the principles" of indirect perpetration [3] without further explanation.).
W therefore had intent to commit bodily injury.
b) The immediate setting (objectively on a subjective basis)
If the perpetrator has done everything for his idea of the commission of the act required, the test is thus given if already completed, is already in principle before a trial of the offense. In dispute is whether an exception has to do it, if not the success will follow directly from the plot.
Then one could in fact be the general to § § 22, 23 Criminal Code according to principles developed back and ask if lie to the notion of the perpetrator of the act no time and no significant break between the acts between his conduct and the success, the victim would be endangered by concrete after objective evaluation of his performance and the perpetrator subjectively on the eve of the Citizens on is going on.
first "Run in" key of F as an interlude or break time? If you walk up to
I. a) 2 assume that the intent is focused on indirect commission by another (§ 25 StGB [4] ), could "walk into the the F to be attributable W, essential intermission.
second Concrete threat to the protected right? is attributed to
But already, regardless of whether the action (preparation of the Tatmittler must immediately) the victim of indirect perpetration or only similar principles [5] (the victim must be in actual danger to be), It comes after an opinion on whether a specific threat based on the idea of the W is still missing. The Supreme Court explicitly required in a decision that the victim "in the immediate Scope of these traps reached "must be, even if it is clear that it will be released in the near future [6] . Although W was sure that F would occur in the foreseeable future in the trap. However, with a waiting time of about an hour ago, where no time-local aggravation. Then W would have on the way back from patrol still not recognized immediately.
third Extended threat to the established case law
missing but any uncertainty in the mind of the perpetrator, it could be due to the security of the successful entry points already in the trap and even more so an hour before show of F assume the control response of a concrete danger. The lack of temporal and physical proximity would be offset by the increased risk probability [7] . W expects thus establishes that F appears in about one hour. After that would be here even before a direct preparation.
4th All insignificant, though some action already completed?
According to another view it is the occurrence of a specific risk only when an unfinished attempt to [8] . W makes his own act he has been so recognized immediately when it is independent of the imaginary security of the successful entry " after the creation of risk is the action of the hand, so he uses his powers stripped [9] " regardless of whether the victim had to participate even unconsciously or not specifically appeared at risk. Under the camouflage of the case W must do nothing further. He had his mind after the trap unattended and left to itself, and thus his powers stripped to the planned admission success, as he supposed to control the scene already a curved road had left behind. Then W would have immediately recognized
5th Subjectively, on the eve of the "now goes off you?"
If one focuses on the subjective tense feeling of the offender, then it crosses is the threshold to " now let's [10] "and only did so when he says the victim had F in space and time the event is already within sight or earshot of the approximated W. W calculated until an hour later with F. Hence W stands subjectively not yet on the threshold of the let's go. If one but from the actions of W, the threshold is already exceeded, because he has done everything necessary. The subjective theory can yield inconclusive results because in their framework is not clear "what " for now is to go off.
6th Decision and Interim Results:
Because of the different results is a decision for or against any case, the solution required, which calls for spatial-temporal subjective deterioration in terms of a concrete danger.
For the theories that a subjective real risk speaks to require additional action completed execution and the loss of influence, that the legislature not only the " preparation" but also a "directness requirement" introduced [11] and thus has at least subjectively set up a real danger in the event. Moreover, does the proximity of the indirect perpetrator [12] lead, which is due to arrive after many views on the action of the Tatmittlers and not the background man.
The worthlessness of the experiment, but is generally in the dangerous actions of the perpetrator and not in danger of success, § 23 para 3 of the Criminal Code. The law also requires an immediacy of piecing , not the danger. If the quality of the perpetrators Done controlling agent is serious, he puts on his act and not the victim by his final performance. Therefore, it is senseless to attempt, if only subjectively, for specific hazards and explain to the success of crime. A necessary and sufficient to carry out the dangerous act, at least when the offender enters its influence on the situation. The theories that demand the idea of a real danger to convince, not so. (AA reasonably good).
III. illegality
lack of justification the Open he was acting unlawfully.
IV debt
He was culpable and not excused.
V. resignation acc. § 24 para 1 1 Alt. Criminal Code as a personal aside basic criminal abandonment of the W?
B of attempted homicide of the A retired amnesty if he desisted from A as he left the room and the execution of the deed voluntarily abandoned.
a) No failed attempt (giving up possible or failure?)
B has to give up the execution of the deed, when he stopped not only the acts of aggression, but the achievement of success as part of his act was still possible and not failed . On the circumstances be defeated is giving up her sense of the word something other than. Surrender implies a choice.
first Total consideration doctrine
we understand the Tatbegriff and thus the "Tatausführung" further and considering all available adapted devices, there is in any case before the same Tatausführung when the A success and without significant spatial and temporal caesura after his performance can still cause the relevant date of the decision (to leave the "withdrawal horizon" after the so called total consideration doctrine [13] ). A was here easily renewed camouflage the trap possible .. As A left the trap and went home, he was not hurt so badly that a renewed camouflage the trap would have been impossible. Therefore, would still make the same fact, if W is the case would again conceal, rather than withdraw.
second Einzelaktstheorie
The proposed Tatausführung would W no longer subjectively possible if the "Tatausführung" was already completed, with the camouflage the trap and the new camouflage rather than a continuation of the same acts, but as a new fact (design), therefore represents a new dock-(sg Einzelaktstheorie [14] ).
third Tatplantheorie
If one focuses on the subjective Tatplanung of the perpetrator, the act failed rücktrittsausschließend when the initial Tatplan fails because of the offender and this plan provided no alternatives park (on the "planning horizon" after the sg Tatplantheorie [ 15] ). Here A had only planned with the first dressing of the trap to reach the success already. Therefore, after the Tatplantheorie would also already have a different, new Tatausführung.
As the total consideration to another theory about possibilities [16] different result comes, it must be decided which option to follow.
4th Arguments against the so-called Einzelaktstheorie
Einzelakttheorie Against the objection is that it tears apart unrealistic uniform processes of life leads to the fractalisation Tatbegriffs and leads to a narrowing of the cancellation option.
5th Arguments against the so-called Tatplantheorie
speaks against this theory that they privileged those offenders who thought through the increased use of criminal energy to multiple Tatablaufvarianten have. 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 protect the victim as much as possible through wide withdrawal options as an incentive to adjust to the perpetrator of the attack, the total consideration doctrine.
7th Interim Results:
then would be the attempt of the A principle capable resignation. (Moves to the problem of so called acceptable failure in the voluntary resignation results so far no other result [17] .)
b) applying sufficient?
A did the deed but only gave up when success was not prevented as without his help. Then would have had to make a serious effort to § 24 I, p. 2 of the Criminal Code, such as by example the case zuschüttete.
first Unterminated attempt?
For the simple surrender would first have to be some unfinished experiment. W here was first assume to have done everything necessary for violation of the F. When the decision to go home, he held a successful entry but no longer possible, since the case was revealed. Following this overall assessment favored theory of established case law (see above) it also depends on the classification of the trial ended in / unfinished on the so called "withdrawal horizon" at. Then, a transformation of the ended in the unfinished attempt is possible and correct, if the offender acknowledges that the victim was still not placed in danger by his actions. For otherwise the offender would cut the pointless resignation.
Abandoning the W in the sense of § 24 para 1 Alt. 1 StGB (unfinished experiment) is only given if it is a subjective suitability of giving up on the success avoidance sufficient is. For objectively F has fallen into the trap anyway. (Another view, that is giving up enough, because it is sufficient for W would be acceptable here, then you would have to leave more to the subjective nature of the experiment.)
second Or non-completion without the assistance of the perpetrator?
The success ultimately failed not because W is not the case again camouflaged, but remained at random from, because even in the case of F fell, but not injured. Not much was the lack of camouflage, but the happy case of F.
Then W would not give up, but the Random success prevented. That would be a non-full ends without the assistance of the offender W. It follows that a serious effort necessary to prevent them. This requires the text of the third alternative of § 24 paragraph 1 StGB.
(aa) Mere passivity generally not sufficient
Such must always go beyond the purely passive giving up, if that is not the only exception and meaningful way is turning away. Otherwise, the offender would also like here relieved by the accidental lack of success. W here could have been more than that fill up the trap. Then he would not so resigned.
(bb) exception if the offender also may rely on inaction to a lack of success
But it would be on the to require subjective test basis, § 22 StGB, inconsistent, the offender an objective risk aversion, for he sees no reason and that was not really necessary even [18] . If the subjective creation of a sufficient threat to make use of, the conscious decision to not play enough risk to justify if the risk is for offenders idea already ceased to exist and in fact not realized in the success. A pure stand up is therefore a serious concern if the offender " can safely assume the act would not run without his involvement [19] " . Here it is therefore only on the subjective danger of the disappearance case, when W was allowed to rely at least according to his notion of objective rating [20] . That was already the case as W the place of the event left, he felt justified even found out that the trap is safe now. The fact that a large hole on the way is not seen is rather unlikely. Then W would have either given up the act when he is not the case further camouflaged or so in any case seriously committed to the prevention of success.
c) Voluntary withdrawal
The abandonment or serious work are to M. h. voluntarily if the offender without a strong psychological coercion of autonomous motives on the further execution of the deed distance increases. Here, W A slight injury, but this did not prevent them mentally to put the case back into state. The risk of discovery or ernuten miscarriage was not extremely elevated. W is rather disappointed with the first failure and was simply tired. Therefore, he acted voluntarily.
W has resigned from the attempted assault of amnesty to the detriment of the F.
B. result
W has not made punishable.
[1] not absolutely necessary, will look to how we classifies the immediate preparation.
[2] BGHSt 43, 177 "poison case of a pharmacist," BGH NStZ 1998, 294 "booby trap". The addressing of the indirect perpetrator sheep t can only be expected from good to very good students. Sometimes it makes no difference whether the adapted devices moved to the victim or the victim of the adapted devices.
[3] BGHSt 43, 177
[4] only to be expected of good students, Indirect perpetration as part of the lecture yet.
[5] BGHSt 43, 177 "poison case of a pharmacist"
[6] BGH NStZ 1998, 294 "booby trap".
[7] So well BGHSt 43, 177 "poison case of a pharmacist": Is "established for the offender, the victim will appear and be cause for Taterfolgf planned behavior, there is immediate danger (after the Tatplan) already completed before the criminal act .... "Agreeing NStZ Altvater 1998, 345
[8] Sch / Sch / Eser, § 22, Rnd. 42.
[9] Herzberg Jus 99, 225 f., Roxin JZ 1998, 210
[10] BGHSt 26, 203
[11] BGHSt 43, 177 "poison case of a pharmacist."
[12] See footnote 3
[13] Since BGHSt 31, 17, NStZ 93, 399 "is now well-established case law later." (Sch / Sch / Eser, § 24 Rnd. 18 with further references)
[14] cooling, JuS 1981, p. .195; James, AT, 26/15 f.
[15] so still BGHSt 14 , 75, 22 176th
[16] The fourth possible solution nor the sg of Hillenkamp purpose of punishment theory, including SK-Rudolphi, § 24 is marginal. 14 represented that relates directly to the general criminal policy or special preventive need for punishment. The presentation of this the methodological and constitutional aspects of concern and few remaining minority opinion is not expected.
[17] Who's going this route, but should explain above, why is a surrender in the literal sense, despite the possible failure. The agent should therefore invalidate the argument text.
[18] HM to § 24 para 1, Herzberg, JZ 1989, 115: " common ground" (AA justifiable offender must earn withdrawal episodes).. The problem is treated without dogmatic classification under the index, maximum withdrawal efforts "in the consistent holdings of the Supreme Court, but usually in preventing and not when placing or serious effort.
[19] BGH GA, 1974, p. 243
[20] This is my interpretation the above Supreme Court decision, there is demanded of the Penitent assume " can" without its participation would indeed not complete. Can be here "may rely " as interpreted, as the perpetrator in his imagination as a master of his thoughts can take everything as safe as they please. Whether this objectification of the test is accurate is another question to be here but not to be resolved.
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