Definition and conceptual determination of the unlawfulness connection
Der Connection of unlawfulness is a central element of the offense in German criminal law and other areas of German law. It describes the required link between an unlawful act and the resulting outcome, particularly in the attribution of damages in the context of tortious liability. This connection concerns complex chains of causation and examines whether the realization of the prohibited, unlawful conduct specifically caused the result that constitutes the offense.
Systematic classification of the connection of unlawfulness
Conceptual and historical development
The doctrine of the connection of unlawfulness developed within the context of legal examination of causality and objective attribution. Originally discussed primarily in criminal law, it is also recognized in civil law, especially when examining claims for damages, and in administrative law. The underlying doctrine recognizes that not every result that is causally related to a legal interest violation gives rise to liability, but only those that specifically result from the breach of legally relevant duties.
Typical areas of application
- Criminal law: Primarily in result offenses, such as bodily injury, homicide, or property crimes, the connection of unlawfulness plays a role. In addition to causality and objective attribution, it serves to finely adjust liability or sentencing.
- Tort law/Civil law: In connection with claims for damages, such as for bodily injury (§ 823 BGB) or property damage, it must be examined whether the damage is connected to the act by the connection of unlawfulness.
- Administrative law: A comparable issue arises in police law, for example when examining the proportionality of administrative measures and their consequences.
Dogmatic foundations of the connection of unlawfulness
Causality and objective attribution
The connection of unlawfulness builds upon the classic levels of attribution assessment:
- Causality: There must be a causal link (conditio sine qua non) between conduct and result.
- Objective attribution: The realization of the result forming the offense must be attributable to the actor as his or her doing according to the rules of objective attribution.
Only if both prerequisites are met does the question of the connection of unlawfulness arise.
Distinguishing from other attribution issues
The connection of unlawfulness must be distinguished from:
- General unlawfulness: Concerns the assessment of whether an act violates the law.
- Connection of fault: Concerns individual culpability.
- Adequacy connection: Concerns whether the result was foreseeable according to the ordinary course of events and general life experience.
The connection of unlawfulness limits liability to those results in which the danger excluded by the prohibition has typically materialized.
Content and functions of the connection of unlawfulness
Purpose and content
The connection of unlawfulness serves the following functions:
- Limitation of liability: Liability does not arise for every ‘accidental’ result, but only if the specific danger the violated rule was meant to protect against actually materializes.
- Avoidance of excessive liability consequences: Random, atypical courses of damage and occurrences of results are excluded from attribution.
Typical case scenarios
Protective purpose of the norm (requirement of protective purpose)
A damage must fall within the protective scope of the violated norm. Example: A duty to ensure traffic safety protects against injuries resulting from unsafe walkways. However, if someone falls for other reasons, there is no connection of unlawfulness.
Atypical courses of causation
In the case of completely unusual chains of damage (so-called ‘atypical courses of causation’), the connection of unlawfulness is often lacking. An offender cannot be held liable for such if the result lies outside what the norm intended to prevent.
Intervention by third parties or personal responsibility
If the result is significantly influenced by the conduct of third parties or by the victim’s own responsibility, the connection of unlawfulness may be interrupted (‘interruption of causality by third-party or self-fault’).
Legal consequences and practical relevance of the connection of unlawfulness
Proof of, or the lack of, a connection of unlawfulness is regularly decisive in practice as to whether claims for damages or criminal liability can be established. The courts require a nuanced assessment of each individual case.
Case law and fundamental decisions
Several leading decisions, for example by the Federal Court of Justice (BGH), have refined the connection of unlawfulness, especially for damages under § 823 BGB and negligence offenses. The BGH always examines whether the harm suffered is precisely the risk that the violated provision was designed to protect against.
Summary
The connection of unlawfulness forms a central criterion for establishing liability and criminal responsibility in German law. It restricts the chain of attribution between an unlawful act and the realized result to typical causal progressions encompassed by the protective purpose of the norm. The precise determination of this connection is differentiated in each case scenario and thus prevents an inappropriate extension of legal liability. The concept is therefore an important element of dogmatics in both criminal and civil law and other areas of law.
Frequently asked questions
What is the significance of the connection of unlawfulness in criminal law?
The connection of unlawfulness plays a central role in criminal law, particularly in connection with the objective attribution of a result. It ensures that not every unlawful act automatically leads to criminal liability, but requires an inherent connection between the conduct fulfilling the offense and the concrete result. The decisive factor is that the result actually occurred due to the unlawful nature of the act. If the specific result lies outside what the violated provision was intended to prevent, this connection is lacking. For example: If someone violates a traffic rule and then a damage occurs that has no factual connection with the purpose of the violated provision, a conclusion of criminal liability beyond the violation itself must be critically examined.
How is the connection of unlawfulness examined as part of objective attribution?
As part of objective attribution, examination of the connection of unlawfulness generally occurs in two steps: First, it is established whether the perpetrator created a legally relevant danger (‘creation of a legally disapproved danger’). In the second step, it is examined whether this very danger materialized in the result forming the offense. Only if both are affirmed is the result objectively attributable to the perpetrator. If there is no specific connection between danger creation and result, attribution can be denied. This is especially the case for atypical causal courses or so-called exceedances of the protective purpose.
In which constellations is the connection of unlawfulness particularly problematic?
The connection of unlawfulness often becomes problematic in cases of ‘atypical causal course’ and the so-called ‘protective purpose doctrine.’ A typical case involves so-called self-endangerment for rescue or extraordinary personal responsibility by the victim. Here, it may be that the result caused by the offender’s conduct falls outside the area protected by the provision. The connection of unlawfulness is also problematic in third-party interventions or accidental influences when the result does not appear to be the realization of the risk that was created.
What role does the protective purpose doctrine play in the connection of unlawfulness?
The protective purpose doctrine is a central tool in assessing the connection of unlawfulness. It asks whether the violated provision was actually intended to protect against the result that occurred. If this is not the case, objective attribution is excluded. The protective purpose doctrine thus ensures an appropriate limitation of criminal liability by making sure the offender is only liable for results that fall within the scope of protection defined by the violated rule.
Can the connection of unlawfulness be interrupted by voluntary intervention by third parties?
Yes, the connection of unlawfulness can be interrupted by a voluntary and fully responsible intervention by a third party. This applies particularly if the third party, acting on their own free will and with knowledge of all material circumstances, creates a new, independent risk situation that brings about the result forming the offense. In such cases, the original perpetrator is generally no longer held responsible for the result in criminal law, as the result is no longer the realization of the danger they caused, but rather the consequence of the third party’s own voluntary action.
What is the significance of the connection of unlawfulness in cases of omission?
In cases of omission, the connection of unlawfulness is particularly important for determining the protective scope of the guarantor’s duty. It must be examined whether the omission is legally disapproved and whether the specific result was encompassed by the duty to avert danger. If this is not the case—if the provision does not protect against the concrete result—criminal liability for omission does not apply. There is also a close relationship to the protective purpose doctrine, as it can be misjudged whether the scope of protection was actually engaged.
How is the connection of unlawfulness distinguished from the adequacy formula?
While the adequacy formula asks whether a result was foreseeable according to the ordinary course of events and general life experience, the connection of unlawfulness refers more specifically to the scope of protection of the norm. Adequacy is a general attribution criterion, while the connection of unlawfulness focuses on whether the danger caused by the unlawful act materialized in the result forming the offense. Both criteria complement each other and must be examined independently.
