What is meant by objective solution

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1. Set of offenses: What happened in the villa

Criminal liability of A and B

§§ 242 I, 244 I No. 1a, No. 3, 25 II

I. Facts

1. objective fact

a) third-party movable property: valuables belonging to O

b) Joint removal by A and B within the meaning of Section 25 II

Original custody was with O (general sphere of rule of one's own house).

Custody breach = lifting of previous custody without or against the will of the authorized person (+) by putting the valuables in the sack.

When did A and B establish new custody and thus complete the removal (importance: 1)?

It is necessary that they have actually obtained physical control in such a way that there are no significant obstacles to their exercise (BGH NStZ 1988, 271). For this it is crucial that the free availability for the previous detainee is excluded and their recovery forces them to behave socially conspicuous (Wessels / Hillenkamp Criminal Law BT II, ​​39th edition 2016, marginal number 121). O should have snatched the sack from A by way of self-defense in order to restore the power of disposal over it. With the packing of the things in the sack, A's new custody was justified.

c) § 244 I No. 1a: Carrying a dangerous tool (knife of A) around?

The requirements of the dangerous tool (importance: 3) are disputed.

aa) Theory of objective danger: A tool is dangerous if its objective suitability to inflict significant injuries is readily apparent ("weapon substitute function") (BGH HRRS 2008 No. 648). This disclosure should be absent if dangerous use would only be possible if the tool was obviously used for purposes other than intended (e.g. Hörnle Jura 1998, 172; even closer Schönke / Schröder /Eser / Bosch StGB, 29th edition 2014, § 244 marginal number 5a: no other use possible than as a means of attack against people); Lesch GA 1999, 376 f. Wants to demand that the carrying of the object be covered by a legal prohibition.

bb) Theory of the reservation of use: The dangerousness of a tool is to be judged according to how the perpetrator may want to use it. No specific intended use (arg. Ex § 244 I No. 1b) is to be demanded, but only a reservation of use (Heir JR 2001, 207; Hilgendorf ZStW 112 [2000], 832; Wessels / Hillenkamp Criminal Law BT II, ​​Rn. 265 ff.).

cc) Dedication theory: What is required is a general suitability for causing significant injuries and a general (ie factual situation-independent) dedication of the perpetrator to use the object to injure people (e.g. BGH NStZ 1999, 301 f. [In 2008 the 3rd Senate of the BGH (BGH NJW 2008, 2861) decided in favor of an objective interpretation against the dedication doctrine and thus joined the 1st and 2nd Senate. The 5th Senate followed in 2012 (BGH NStZ 2012, 571); see on this Wessels / Hillenkamp Criminal Law BT II marginal number 279; Fisherman StGB, 62nd edition 2015, § 244 marginal number 20]).

dd) Dispute resolution required: What speaks against the subjective theories (reservation of use and dedication theory) is that § 244 I No. 1a, in contrast to No. 1b, does not require a subjective element. Rather, the legislature wanted to cover cases with No. 1a in which the carrying of a tool per se, i.e. because of the mere latent danger of use, constitutes a particular danger for the victim. Thus, an objective risk of causing serious bodily harm is sufficient (cf. in detail BGH NJW 2008, 2861, 2862 ff.). The knife is therefore a dangerous tool within the meaning of Section 244 I No. 1a.

ee) The introduction must take place at any point in time between the start of the experiment and the end of the experiment. A had carried the knife on his belt and with it since the start of the crime.

Note: According to the prevailing (and to be advocated) opinion, the tray is ruled out as a tool within the meaning of § 244 I No. 1a, because it was only used after the removal was completed (cf.Nomos Commentary StGB / Kindhäuser, 5th edition 2017, § 244 No. 21).

d) § 244 I No. 3 (burglary of the apartment) (+): A and B have entered O's villa.

e) Complicity (§ 25 II): Joint plan of crime, functional perpetration and mutual will of the perpetrator (+)

2. subjective fact

a) intent (+)

b) Subjective prerequisite for showing oneself: Willingness to show one another requires that the perpetrator is aware of the availability or readiness for use of the tool. A carries the knife out of old habit, but without currently thinking about it. In the "service weapon cases", in which police officers carry the service weapon with them during the theft, this awareness can usually be assumed. On the basis of this, the intent of A, who carried a knife in the old habit, can also be affirmed; (critical of service gun jurisdiction Fisherman StGB, 63rd edition 2016, § 244 marginal number 31; see also Leipzig Commentary on the Criminal Code /bird, 12th edition 2010, § 244 marginal number 35 et seq.)

Since A's knife was clearly visible to B, his intention is also to be affirmed.

Note: If the circumstances of the offense suggest that awareness was lacking in the specific case, strict requirements must be placed on current awareness. Doubts about the current awareness of carrying a weapon can also arise from professional carrying. In one case, the factual consciousness was denied, considering that the policeman known for his forgetfulness could have “forgotten” the weapon he always carried with him (cf. OLG Hamm NStZ 2007, 473).

c) Intent to unlawful appropriation (+)

II. Illegality (+)

III. fault (+)

IV. Result: A and B have made themselves liable to prosecution according to §§ 242 I, 244 I No. 1a and No. 3, 25 II.

Sections 252, 250 I No. 1a, II No. 1, No. 3a, No. 3b, 25 II

I. Facts

1. objective fact

a) Previous offense theft: see above (+)

b) Being affected in the act

aa) freshness

Spatially: At the crime scene or in its immediate vicinity: here (+)

In terms of time: Between completion of the removal and the end of the theft: here (+), when the valuables were packed in the sack, the theft was complete. However, A and B stayed at the scene of the crime, i.e. in the domain of O, and have not yet finally secured their prey. So the theft is not over yet.

bb) Being affected: B hits O with the tablet in the head before the latter could notice him. - The question of whether the victim must have noticed the perpetrator or whether a spatiotemporal encounter is sufficient is disputed (importance: 2) (see Wessels / Hillenkamp Criminal Law BT II, ​​Rn. 401):

aaa) Rspr. and parts of the lit. consider a spatiotemporal meeting of perpetrator and victim from the perpetrator's perspective to be sufficient (Schönke / Schröder /Eser / Bosch StGB, § 252 marginal number 4). In order to preserve the objective unlawful relationship with §§ 249, 255 StGB, it is necessary that the third party concerned could have recognized the theft without the intervention of the perpetrator and could have brought the perpetrator into connection with this act (Nomos Commentary StGB /Child homes StGB, Section 252 marginal number 10).

Then the thief is also included who, as here B, uses coercive measures to prevent the theft from being noticed and his person (Fisherman StGB, § 252 marginal number 6; a.A. insofar Wessels / Hillenkamp Criminal Law BT II, ​​Rn. 401). If B hadn't knocked O to the ground with the tray, O would have recognized the theft and the perpetrators.)

bbb) The opposite position means that the feature "affected" characterizes the view of the third party, thus presupposes his perception (cf. Geppert Jura 1990, 554, 557). In some cases, it is even required that the third party perceives the thief as the alleged perpetrator of a criminal offense or, even more strictly, as the suspect of the specific theft offense (Leipziger Comment StGB /bird, § 252 marginal number 29). Others let it be sufficient that the perpetrator is at least heard or seen as a person (RGSt 73, 343, 346 ["perceive or notice"]; Seelmann JuS 1986, 201, 206). As a result of the hit with the tray, O did not even perceive B here, i.e. not even as a person, so that Section 252 would have to be eliminated for lack of concern.

ccc) Dispute resolution: The case law refers to the fact that it makes no difference for the criminality of the perpetrator's behavior whether he knocks down the surprised victim before or after he / she sees him in order to remain in possession of the stolen goods. Even the literal sense of the word does not speak against such an interpretation, because the term “affected” can also be understood as being affected from the perpetrator's point of view; the victim, who is knocked down from behind, also perceives the perpetrator sensually at this moment. The second-mentioned view sees in the broad interpretation of the feature "affected" an analogy to the detriment of the perpetrator, since the still possible literal sense has been exceeded (LK /bird StGB, § 252 R. 28). However, this is not to be agreed with, because "concern" can definitely be meant in the sense of "encounter" and then does not necessarily include mutual perception. As a result, the characteristic of being concerned is to be affirmed here.

cc) Use of force by B (+)

dd) Qualifying feature (§ 250 I No. 1a) due to A knife being carried along

ee) Qualifying feature (§ 250 II No. 1) from the heavy blow with the metal tray against the head of the O? The concept of dangerous tools in § 250 II No. 1 is disputed (importance: 2).

aaa) According to a view represented in the case, the dangerousness is to be determined differently in § 250 I No. 1a and II No. 1: While in Paragraph 1 - parallel to § 244 I No. 1a - an abstract concept of dangerousness is used should be laid, the dangerousness can be determined in paragraph 2 - analogously to § 224 I No. 2 - according to the specific use (BGHSt 45, 249; BGH NStZ 1999, 135). The tray, made of metal, could cause the O's unconsciousness or even a fractured skull when it hit the head of the O and, according to this view, is to be qualified as a dangerous tool.

bbb) The opposing view points out that the wording of the law requires the use of identical terms of the dangerous tool in § 250 I and II, so that the controversial criteria of abstract dangerousness (see the above dispute in the context of § 244 No. 1a) also in Paragraph 2 No. 1 are to be applied (Fisherman StGB, § 250 marginal number 7 with further references). All representatives of a subjective opinion (reservation of use or similar) must assess the tray as dangerous because it was actually used in a dangerous manner; Advocate of an objective point of view (“weapon substitute function”; evidence from Fisherman StGB, § 250 Rn. 8 et seq.), On the other hand, are excluded from everyday objects (e.g. the tray) because they do not have the general danger of weapon-like objects.

ccc) Dispute resolution required: Systematics and wording speak for a uniform interpretation of the terms in § 250 I and II. According to this, the tray is to be eliminated as a consequence of the above solution due to the lack of general danger.

Note: There is no disclosure within the meaning of Section 250 I No. 1a and 1b if the object just happens to be lying around at the scene of the crime and can be seized by the perpetrator. Different applies if the object is actually used - as here - see Nomos Commentary StGB / Kindhäuser, § 244 marginal number 18.

ff) § 250 II No. 3a - severe physical abuse? With a view to equivalence of No. 3a to No. 3b, this is only given in the event of severe pain on the part of the victim or significant consequences for their health; here (-)

gg) § 250 II No. 3b - specifically life-threatening treatment due to the blow to the head (+)

hh) Complicity: Both a common plan of action and common perpetration are required:

aaa) Joint plan of action: (+) B gives A a hint that he should hide, and A rightly understands it to mean that B wants to make O harmless by force. This is an implicit decision to act.

bbb) Assault rule by A and B: (+) While A hides the prey, B secures it against impending deprivation by using force. Both have functional authority. Both also want the forcible securing of their booty as a separate act.

2. subjective fact

a) intent (+)

b) Intention to secure the booty

aa) on the side of the A (+)

bb) on the B side? B himself has no custody of the stolen goods, since A carries the sack with the valuables. Does he still act with the intention to retain ownership (importance: 1)?

According to the unambiguous wording of § 252 ("in order to maintain possession of the stolen property"), only those who are in custody of the stolen goods can be considered as perpetrators; a third-party owner's intention is not recorded.

But: The custody is an objective circumstance, which is attributable according to § 25 II (Wessels / Hillenkamp Criminal Law BT II, ​​Rn. 407), so that in view of the present complicity B must be treated as if he himself had.

II. Illegality (+)

III. fault (+)

IV. Result: A and B have made themselves liable to prosecution according to §§ 252, 250 I No. 1a, II No. 3b, 25 II.

Sections 223 I, 224 I No. 2, No. 5, 25 II

Note: B's sole perpetrator is also justifiable on the grounds that a joint decision to act is not sufficiently recognizable or that A lacks control of the perpetrator with regard to the act of bodily harm.

I. Facts

The blow on the head with the tablet is bad, inappropriate treatment and thus physical abuse within the meaning of § 223 I 1st alternative. Since O became unconscious, there is also damage to health (2nd old).

The implementation of § 224 is also possible.

No. 2 (+). According to its objective nature and specific use (hit on the head), the tray is suitable for causing serious injuries.

No. 3 (-) Assault is an unforeseen attack that the attacked cannot adapt to in time. He is insidious if the perpetrator proceeds according to plan, in a manner calculated to conceal his true intentions, in order to make it more difficult for the attacked person to defend himself against the unexpected attack. B heard the O and then waited patiently with the tray. The facts suggest that B only took advantage of the element of surprise, which is why the deceit is to be denied.

No. 4 (-), because A is hiding behind the cupboard. There was thus no increased danger due to at least a provisional cooperation between the parties involved.

No. 5 (+). The construction of a killing resolution would go too far.

II. Illegality (+)

III. fault (+)

IV. Result: A and B have made themselves liable to prosecution according to §§ 223 I, 224 I No. 2, No. 5, 25 II.

Sections 123, 25 II

(+), but § 123 takes a back seat to §§ 242 I, 244 I No. 3 by way of consumption.

Note: Neither in the 1st nor in the 2nd set of offenses does the facts provide sufficient indications for a suspension (§ 221).

 

2. Set of offenses: The escape

Criminal liability of the A

§§ 252, 250 I No. 1a

I. Facts

1. objective fact

a) Previous offense: see above

b) Being concerned in the act

aa) freshness

Problem: A and B only meet X after a ten-minute race with the police officers.

It is true that A and B have already moved a long way from the crime scene after the long run through gardens and over fences; however, they have been followed by the police since leaving the scene and the chase was still going on when X showed up.

The freshness of the act is to be measured using the standard that is applied in § 32 for the presence of the attack: As long as self-defense can still be exercised against the thief, the act is also "fresh" within the meaning of § 252 (Nomos Commentary StGB /Child homes, § 252 marginal number 14 f.). A compulsory exercise during the pursuit must also meet these requirements. The escape must therefore not create such a distance between the perpetrator and the persecutor that the detention system ends the previous offense (cf. Wessels / Hillenkamp Criminal Law BT II, ​​Rn. 400).

Since policemen A and B are keeping close on their heels, we cannot speak of custody security ending the previous offense.

Result: Thus, despite the ten-minute chase and quite a long way from the location of the removal, the act is still fresh within the meaning of Section 252.

bb) Being concerned (importance: 2)

A mutual perception is not necessarily included. As a result, the characteristic of being concerned is to be affirmed here. See the description of the dispute in complex 1.

c) Use of force: By kicking the A in the stomach of X (+)

But: A mistakenly thinks the X is a plainclothes policeman who wants to take the booty from him. It is questionable whether X is thus a suitable crime victim, since he was not objectively, but only in the imagination of A, ready to protect in favor of the theft victim.

The act of coercion can be directed against any outside person of whom the thief, even if it erroneously, assumes that he will withdraw his custody in favor of the person entitled (BGHSt 28, 224, 230 f .; Nomos Commentary StGB /Child homes, § 252 marginal number 17). So here (+)

d) dangerous tool i. S. d. § 250 I No. 1 a? The requirements for the dangerous tool (importance: 2) are disputed (see above). According to the objective consideration pursued here, the knife is to be assessed as a dangerous tool.

2. subjective fact

a) intent (+)

b) Intention to keep ownership (+)

II. Illegality (+)

III. fault (+)

IV. Result: A has made himself a criminal offense in accordance with §§ 252, 250 I No. 1a.

Sections 223 I, 224 I No. 2

I. Facts (+) Shoed foot as a dangerous tool at T

II. Illegality (+)

III. fault (+)

IV. Result: A has committed a criminal offense in accordance with §§ 223 I, 224 I No. 2.

Section 123 I.

I. Facts (+) Crossing foreign gardens.

II. Illegality (+)

III. fault (+)

IV. Result: A has made himself a criminal offense according to § 123 I.

Criminal liability of B.

Section 123 I.

(+) also B has made himself a criminal offense according to § 123 I.

 

Competitions: A made himself a criminal offense in the first complex of offenses according to §§ 242 I, 244 I No. 1a, No. 3, 25 II; 252, 250 I No. 1a, II No. 3b, 25 II; 223 I, 224 I No. 2, No. 5. In the second complex of offenses according to §§ 252, 250 I No. 1a; 223 I, 224 I No. 2 and Section 123.

B has made himself liable to prosecution according to §§ 252, 250 I No. 1a, II No. 3b, 25 II, 223 I, 224 I No. 2, No. 5, 52 as well as § 123.

1. Although the two predatory thefts secure the same prey from the same predicate offense, they do not form a unit of action because they are based on different decisions and - above all - are directed against different victims (O and X).

2. For the sake of clarification, bodily injuries remain unchanged alongside predatory thefts.

3. Sections 242 I, 244 I No. 3 are superseded by Section 252 (Fisherman StGB, § 252 marginal number 12).

Overall result: As a result, A has committed a qualified robbery in unity with dangerous bodily harm. For the most part, A has committed a qualified robbery, dangerous bodily harm and trespassing (as a single offense).

B has committed a qualified robbery in unity with dangerous bodily harm. For the most part, he has made himself a trespassing punishable offense.