What is trial through quarrel
Attempt; immediate attachment; Preparation; Criminal liability; "Here we go!"; Immediacy; spatial-temporal connection; Intermediate act; Intermediate act theory; concrete risk; Protection sphere of the victim; Ordeal by fire
According to § 22, the objective offense of the attempt lies in the immediate start of the realization of the offense, the completion of which the intent of the offender must be aimed at (Wessels / Beulke / Satzger Criminal Law AT, 49th edition 2019, marginal number 929). It is questionable when the perpetrator immediately starts the attempt. To this end, a distinction must be made between mostly punishable experimental acts and generally punishable preparatory acts.
Example (according to BGH NJW 1976, 58): A wants to rob the gas station tenant O. When he doesn't find anyone in the gas station, he rings the doorbell of the O's house on the premises and pulls his knife. As soon as the door is opened, the person appearing is to be threatened and forced to tolerate a removal. Nobody opens the door.
Modification: As above, but A does not pull his knife yet, as he knows that the terrifying B visits O more often. If he opens the door, he wants to give up his plan and disappear as quickly as possible. Again, nobody opens the door.
Did A start to act immediately in both constellations?
If parts of the offense have already been realized, the delimitation is possible in most cases without any problems, because the perpetrator has already passed the stage of immediate attachment and is on the way to completion (Maurach / Gössel / Zipf Criminal Law AT II, 8th edition 2014, § 40 marginal number 43).
There are a large number of different criteria in literature and jurisprudence for the distinction between unpunished preparation and criminal attempt, such as the intermediate act, hazard or spherical theory. However, when working on a case, it does not make sense to discuss these theories separately, as in a dispute. Rather, the different opinions should be combined in order to achieve a clear result (Rengier Criminal Law AT, 11th edition 2019, § 34 marginal number 21; Wessels / Beulke / Satzger Criminal Law AT, Rn. 948). This procedure is also common in case law (BGHSt 48, 34, 35 f .; BGH NStZ 2002, 309, 309 f .; BGH NStZ 2004, 580, 581).
View 1: According to the theory of spheres, the attempt begins with the perpetrator penetrating the victim's protective sphere. In addition, there must be a close temporal connection between the act of the crime and the success (Jacob Criminal Law AT, 2nd edition 1991, 25th section, marginal number 68; Roxin JuS 1979, 1, 5 f.).
View 2: According to the "theory of the acid test", the attempt begins when the perpetrator has crossed the threshold to "let's go now". Thus the crime plan passed the "acid test of the critical situation" (BGHSt 26, 201, 203; Bockelmann JZ 1954, 468, 473).
View 3: According to the hazard theory, immediate action is characterized by the fact that the protected legal interest is already at risk from the perpetrator's point of view (Schönke / Schröder /Eser / Bosch StGB, 30th edition 2019, § 22 marginal number 36 ff .; also based on the hazard Fisherman StGB, 67th edition 2020, § 22 marginal number 9 f.).
View 4: For the intermediate act theory, there is an immediate starting point when there are no longer any essential intermediate steps required between the behavior of the perpetrator and the realization of the facts. (Leipzig Commentary on the Criminal Code /Hillenkamp, 12th edition 2006, § 22 marginal number 77; Systematic commentary on the StGB /Hunter, 9th edition 2017, § 22 marginal number 23).
For example above: Since the front door is still closed, A has not yet entered the victim's sphere of protection. What speaks against an immediate danger from the perpetrator's point of view for the legal interest of the O is that the latter did not open the door and was therefore not yet in immediate danger. The fact that O should be overwhelmed as soon as the door is opened and that only chance prevented the attack on his legal interests speaks in favor of a hazard. According to the interim act theory, A started to act immediately, since no more essential interim periods are required. A has already drawn the knife and just has to wait for someone to appear, whom he wants to coerce immediately. By ringing the doorbell and pulling out his knife, he subjectively crossed the threshold to "let's go". The crime plan passed the "acid test of the critical situation" because it was aware that no further interim acts would be required to carry out the crime. Since - in summary - no further interim acts are required, he has crossed the threshold to "Let's start now" and it can be assumed that the legal interest is at risk, he immediately started the act.
To modify: A has not yet penetrated the victim's sphere of protection. Since he has not yet drawn the knife and still has to decide whether he should even compel the person who opens the door, important interim acts are necessary to fulfill the facts. Since he makes the execution of the act dependent on circumstances that have not yet been clarified, he has not yet subjectively crossed the threshold of "let's go". This is also supported by the fact that he did not draw his knife. Since A still has to decide whether he wants to force the person to open the door at all, from his point of view there is still no danger to the legal interest. A did not start immediately to realize the facts.
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