Definition and Explanation of Terms: Deceitful Assault
The term “deceitful assault” is a technical term in German criminal and civil law, which is particularly relevant in connection with bodily harm offenses (§ 224 para. 1 no. 3 StGB) and liability for damages (§ 823 para. 1 BGB, § 7 para. 1 StVG). It describes a particular qualification of an act of violence, which, due to the circumstances of the offense, justifies increased criminal liability or liability for damages. The deceitful assault is not independently defined, but is primarily concretized by case law and academic literature.
Essential Characteristics of the Deceitful Assault
Assault
Ein Assault in the legal sense is present when the victim is attacked unexpectedly and, as a result, is restricted or entirely prevented from defending themselves. The act must therefore take advantage of a moment of surprise and weakness on the part of the victim. An assault is not considered to have occurred if the victim expects the attack or if the situation is foreseeable.
Deceit
The characteristic of Deceit describes deliberate conduct in which the perpetrator conceals their true intent in order to make it more difficult or impossible for the victim to defend themselves. Deceit requires the perpetrator to intentionally set a trap, choose an ambush, or use deceptive maneuvers to facilitate the attack or prevent defense. It is sufficient for the perpetrator to act with guile, aiming to mislead the victim; open and immediately recognizable attacks do not meet the criterion of deceit.
Distinction from Other Characteristics
Deceit must be distinguished from mere treachery. While treachery targets the exploitation of unsuspecting and defenseless victims, deceit additionally requires conduct aimed at making defense more difficult. Not every deceitful assault is also treacherous; however, overlaps may exist.
Legal Classification in Criminal Law
Relevance in the Criminal Code
In criminal law, deceitful assault is particularly relevant in the context of grievous bodily harm under § 224 para. 1 no. 3 StGB Here, the characteristic is a prerequisite for an increased penalty compared to simple bodily harm.
Grievous Bodily Harm
- § 224 para. 1 no. 3 StGB: Grievous bodily harm is also punishable if committed “by means of a deceitful assault.”
- The aim is to provide protection against particularly insidious and perfidious attacks, where the element of surprise nullifies the victim’s ability to defend themselves.
Elements of the Offense
+ Surprise element: The victim is attacked unexpectedly.
+ Deceitful conduct: The perpetrator deliberately conceals their intent through planned behavior.
Sentencing
Fulfillment of this offense element regularly leads to increased penalties. The statutory minimum penalty is increased, as the particular danger and the victim’s restricted ability to defend themselves are taken into account.
Significance in Civil Law and Insurance Law
Civil liability
Im Civil law the concept of deceitful assault can gain significance within the framework of liability allocation in bodily harm offenses. The presence of a deceitful assault can be considered an aggravating factor in assessing fault during claims settlement.
Private Accident Insurance
In accident insurance the deceitful assault attains independent relevance. Many insurance terms exclude benefits for accidents resulting from a “deceitful assault” or intentional criminal acts. Here, a precise assessment is required as to whether the requirements for a deceitful assault within the meaning of the insurance conditions are met.
Distinctions and Variations
Distinction from Robbery and Similar Offenses
A deceitful assault is not equivalent to robbery according to § 249 StGB. While robbery includes an element of coercion combined with the taking of another’s movable property, the deceitful assault is primarily a qualifying characteristic in connection with bodily injury offenses.
Distinction from an Attack from Ambush
In common parlance, an attack from ambush is often equated with a deceitful assault. However, for legal qualification, it is decisive that the perpetrator’s conduct is planned and aims at misleading the victim, not just the mere act of physical concealment.
Case Law and Examples
Decision of the Federal Court of Justice
Die Case law regularly concretizes the term as follows: A deceitful assault exists when the perpetrator deliberately conceals their true intent in order to hinder or prevent the victim’s defense measures, and in doing so attacks the victim unexpectedly. This is the case, for example, when the perpetrator engages the victim in conversation in order to then attack unexpectedly.
Practical Examples
- Hidden attack from a bush, after lulling the victim into a sense of security by waving
- Deceptive handshake that abruptly turns into a punch
- Assault by inconspicuous sneaking up and sudden attack, without warning and with deliberate concealment of the intent to attack
Summary
Der deceitful assault represents an important element of the offense in German criminal law as well as a relevant criterion in civil and insurance law. Key features are the element of surprise in the attack and the deliberate, duplicitous conduct intended to mislead the victim. The precise distinction is determined by case law and always depends on the specific circumstances of the offense. In practice, deceitful assault is particularly significant as a qualifying element in grievous bodily harm, and has an effect on sentencing and civil liability issues.
Frequently Asked Questions
What legal consequences does classification as a deceitful assault have for claims under private accident insurance?
Within the scope of private accident insurance, classification of an injury as the result of a deceitful assault has significant legal implications. According to the general accident insurance conditions (such as AUB 2014), accidents caused by a deceitful assault can, under numerous tariffs, result in payments for a higher degree of disability (so-called progression) or additional benefits, such as an accident pension or death benefit. Furthermore, classification as a deceitful assault often eases the burden of proof for the policyholder, as certain policies irrebuttably presume that the damage was caused by an accident. However, the insurer will precisely examine whether all prerequisites for a deceitful assault are met; otherwise, the obligation to provide benefits lapses. The policyholder is therefore required to document the incident as thoroughly as possible and to identify any witnesses.
Does every attack in traffic constitute a deceitful assault within the meaning of insurance law?
Not every attack in road traffic automatically fulfills the requirements of a deceitful assault in the sense of insurance law. According to established case law of the Federal Court of Justice (BGH), the term assault requires a surprise, hostile action directed against the insured person with violence, which must be accompanied by particular cunning. Traffic accidents that, for example, are due solely to negligence, risky driving behavior, or mutual provocation, do not constitute assaults. Only targeted attacks, where the victim is unsuspecting and the perpetrator consciously exploits the element of surprise, such as suddenly forcing someone off the road with the aim of committing a robbery, can be considered deceitful assaults.
What are the requirements for articulating and proving a deceitful assault to the insurer?
The policyholder bears the full burden of presentation and proof for all facts giving rise to a claim, including that a deceitful assault occurred within the meaning of the insurance conditions. The policyholder must convincingly describe why an assault—and, in particular, deceit—occurred, and substantiate this as far as possible with factual evidence or witness statements. The required information includes the location, time, sequence of events, motives of the perpetrator, and the behavior of the persons involved. If only an assault without deceit can be proven, enhanced benefits will not be granted. In disputes, courts often assess the plausibility of the account and consider indicators (e.g., sudden attack, deception, targeted conduct from ambush).
To what extent can the insurer refuse benefits if there is doubt about the deceit?
If, from the insurer’s perspective, there are justified doubts that the attack was carried out with deceit, it may refuse the requested additional benefit. Typically, the insurer then conducts independent investigations, requests a police report, medical assessments, and detailed descriptions. The insurer may reject the claim in accordance with the contractual conditions, citing insufficient evidence, or may investigate the possibility of insurance fraud. In litigation, it is up to the policyholder to convince the court of the deceit aspect of the assault—if unsuccessful, the policyholder may receive only the basic benefits from the policy.
What exclusions apply to a deceitful assault under accident insurance?
Accident insurance conditions often contain exclusion clauses that may also apply to cases of a deceitful assault. For example, accidents intentionally caused by the policyholder themselves, participation in criminal acts, or involvement in brawls are generally not covered. If an assault occurs within the scope of such an exclusion (e.g., as part of a physical altercation provoked by the policyholder), insurance coverage lapses despite the presence of a deceitful element. Personal fault and gross negligence can also reduce or nullify the entitlement to benefits.
What role does the criminal proceeding play in the insurance law assessment of a deceitful assault?
Criminal proceedings against the perpetrator can support the policyholder’s proof, but do not replace their own substantiation of the deceit. Findings in a criminal judgment are not binding in civil or insurance proceedings, but have strong indicative value regarding the course of events, motive, and the question of guile. The insurer and civil courts assess the criminal judgment independently, but may diverge from it in individual cases if new findings or doubts exist. An acquittal of the perpetrator due to factual reasons (e.g., lack of evidence) generally does not prevent recognition of the assault, provided the policyholder can otherwise prove the deceit.
