Dissertation: „Verhältnismäßige Notwehr“

„Verhältnismäßige Notwehr“

Untersuchung der Rechtsprechung zu Abwägungen bei der Auslegung des §32 StGB

Strafrecht in Forschung und Praxis, volume 266

Hamburg , 266 pages

ISBN 978-3-8300-7169-3 (print)
ISBN 978-3-339-07169-9 (eBook)

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The title „proportional self-defence“ may be confusing at first sight as it correlates two terms of law which in common practice do not belong together.

Contrary to emergency, § 34 StGB, there is, in the case of self-defence, § 32 StGB, no explicit proportionality in the German criminal law code and the court always endeavours to emphasize that there is principally no proportionality.
Nevertheeless, in many cases jurisdiction gives reason to challenge this.

Therefore, in the doctrine there exists the isolated thesis “the interpretation of the right of self-defence is entirely based on proportionality” (Bosch Juristische Arbeitsblätter 2006, 490/491).

For detailed investigation jurisdiction over self-defence since the time of the Reichsgericht until today has comprehensively been evaluated. This does not only occur in cases where the intolerable disproportion between defended and violated interest protected by law has already been recognized for a long time as an example for the restricting of self-defence, but by means of every single feature of the self-defence.

Subsequently, the question arises whether the Rechtsbewährungsprinzip is really the decisive argument for any animosity against proportionality of self-defence or whether this principle, which is based on the severeness of the right of self-defence as well as on ist restrictions, is nothing else than a circular argument.

In the second big complex of these investigations self-defence is compared with emergency. In the first place this is done on the basis of defensive emergency, which is very similar to self-defence according to the standard of proportionality of § 228 BGB which principally evaluates the preponderance of interest on the side of the defender.

As a consequence the following questions arise:

  • Are there any differences between self-defence and defensive emergency?
  • Are there distinctions sufficient to justify a further coexistence of self-defence an emergency or will it be possible to find a common solution?

For a common solution several propositions are made which are focusing in the abolition of the rules of self-defence and the solution of all cases by means of § 34 StGB.

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