Italo Reyes RomeroMittelbare Täterschaft bei Fahrlässigkeitstaten

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The German criminal doctrine defends an extensive concept of perpetration by the negligence imputation, so that only a causal connection and an infraction of the duty of care are required to affirm perpetration. This implies a decisive deviation from the concept of perpetration by intentional offences, where a restrictive concept of perpetration is unanimously recognized. Nevertheless, from the point of view of the theory of norms, a different concept of perpetration by negligent and intentional offences leads to a systematic contradiction. The affirmation of a restrictive concept also by negligent offences opens the possibility of negligent indirect perpetration.

Thus, this work aims to justify the figure of the negligent indirect perpetration from the point of view of the theory of norms. It is essential to recognize that the indirect perpetration is based on the fact that the conduct of the “man in front” only constitutes -in relation to the crime description- an auxiliary action. This action is imputed to him as perpetration under certain reasons. In spite of the commission of an auxiliary action, the indirect perpetration is built on a lack of responsibility of the “man in front”, for which the “man behind” is competent. This corresponds to the construction of the commission of an offence through another person. In this way, the characterization of the indirect perpetrator’s action as auxiliary action has repercussions on his possible negligence, because the respective duty of care relates to the action of another person. The indirect perpetrator then acts negligent, because he did not take the necessary safety measures to properly control the conduct of the deficient “man in front”.

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