Definition and Legal Significance of Intent
Die Intent is a central element in German criminal law and, beyond that, is relevant in numerous other areas of law. It denotes a particular form of inner will by which a person seeks to bring about a specific result. Unlike other forms of mens rea, intent is characterized by a targeted will to act. The following text provides a detailed overview of the various legal dimensions, distinctions, forms, and legal consequences of intent.
Conceptual and Doctrinal Classification
Definition of Intent
According to general opinion, intent refers to the targeted pursuit of bringing about a specific result. It represents the strongest degree of dolus (mens rea) in German criminal law and requires both knowledge of the factual circumstances and a consciously directed will towards achieving the consequence of the act.
Systematics in Criminal Law
Within criminal law, intention (mens rea) is predominantly divided into three degrees:
- Intent (dolus directus of the first degree)
- Direct Intent (dolus directus of the second degree)
- Conditional Intent (dolus eventualis)
Here, intent differs from other forms of mens rea through the particular intensity of the will regarding the commission’s result, even if the occurrence of the consequence appears less likely than achieving another goal.
The Role of Intent in Criminal Law
Elements of the Offense
Numerous criminal provisions explicitly rely on intent. This is required as a so-called subjective constituent element, for example in theft under Section 242 of the German Criminal Code (StGB) (“with the intent to unlawfully appropriate for oneself or a third party”) or in forgery of documents (Section 267 StGB). In such cases, intent is often decisive for establishing or aggravating the penalty.
Distinction between Different Forms of Mens Rea
- Intent (dolus directus of the first degree): Purposeful will aimed at achieving a specific result.
- Direct Intent (dolus directus of the second degree): Certain knowledge of the result, but a targeted will is not necessarily required.
- Conditional Intent (dolus eventualis): Acceptance of a result as possible and willingly taking it into account.
This distinction is significant for determining the subjective elements of the offense and for accurate legal assessment.
Significance at the Attempted Stage
In the context of attempted crimes, intent is of special importance, as the purposeful nature of the conduct helps to distinguish between attempt and preparatory acts. According to case law, intent is not always required for a completed offense, but it is necessary for the attempt of certain offenses.
Intent in Civil Law
Although the concept of intent is less prominent in civil law, it still plays an important role for various legal principles. In particular, the challenge of contracts on the grounds of fraudulent misrepresentation (Section 123 BGB) and immoral intent to cause damage (§ 826 BGB) require targeted and conscious conduct.
Example:
- Fraudulent Misrepresentation: Consciously creating a misconception in another person with the intention of inducing them to make a declaration of intent.
- Immoral Injury: Deliberate conduct with the intention to cause harm.
Significance in Public Law
In public law, for example administrative law, intent can also play a role. For instance, in some cases, intent to obtain a particular permit by abuse of rights can result in the denial of the requested administrative act.
Intent in Case Law
Burden of Proof and Determination
Determining intent is often problematic, as it concerns internal processes. Courts are required to infer the intent of the actor from objective circumstances. In practice, this is done by evaluating indications such as behavior, motive, and the means-end relationship.
Examples from Case Law
- Theft: Intentional appropriation of another’s property
- Fraud: Intent to gain a financial advantage for oneself or a third party
- Misuse of identification documents: Intent to create deception about identity
The standard for the assessment of evidence is high, and strict differentiation between forms of intent is essential.
Summary and Outlook
Intent is a central element in German law, particularly in criminal law. As the strongest form of mens rea, it differs from other types of intent and is a mandatory form of culpability for many criminal offenses. Intent is also relevant in civil and public law, especially in cases of deception, malicious intent to cause harm, or abuse of rights.
Correct classification and evaluation of intent are indispensable for legal certainty and attribution. For practitioners, this means a careful analysis of subjective will and a differentiated assessment in each individual case.
Frequently Asked Questions
What role does intent play in German criminal law?
In German criminal law, intent is a central category of the subjective elements of an offense and is one of the possible forms of mens rea alongside knowledge and conditional intent. It describes the perpetrator’s targeted will to bring about a specific result or realize a specific circumstance. Intent (§ 15 StGB) has significant impact on classification and penalty: for many offenses, particularly so-called ‘intent offenses’ (for example, fraud under § 263 StGB or robbery under § 249 StGB), it is an explicit element of the offense that must be present. The intent must be directed at achieving the result or at bringing about a specific unlawful condition, whereby it is sufficient if the perpetrator pursues the result as a main or secondary motive—the motivation does not have to be directed solely at the offense but may coincide with other motives. In criminal proceedings, establishing intent is often challenging because it must be inferred from external circumstances and the conduct of the act. It also affects qualification and sentencing, as intentional acts are regularly assessed more severely than merely reckless ones without intent.
How is intent considered in civil law?
In civil law, intent plays an essential role particularly in connection with declarations of intent and in the contesting of legal transactions due to misrepresentation (§ 123 BGB). Anyone who makes deliberately misleading statements or seeks to induce another to make a declaration of intent acts with the intent to bring about an unlawful and causal influence. Establishing intentional immoral damage (§ 826 BGB) requires the actor to act with the goal of causing harm to another; mere recklessness or negligence does not suffice. In the context of management of the affairs of another without mandate or in the case of an agent (§§ 677 ff., 164 ff. BGB), intent can also be significant, for example when it comes to the intent of managing affairs for one’s own benefit. Finally, intent also plays a role in assessing the validity of form and morality, for example in sham or immoral contracts.
What is the significance of intent in regulatory offense law?
In the law on regulatory offenses, for prosecuting an offense it is usually sufficient to prove intent or negligence; intent beyond this is typically not necessary. However, there are certain offenses where intent is explicitly required, such as unauthorized parking for the purpose of obtaining an advantage (e.g., “in order to gain a parking advantage”). In cases of particularly serious regulatory offenses, intent can also result in a higher fine or specific legal consequences such as driving bans. Establishing intent must then be examined as a prerequisite for stricter sanctions and proven in the proceedings.
How is intent assessed in tax law?
In tax law, intent (often used synonymously with ‘mens rea’) plays an essential role, for example in tax evasion under § 370 AO. Here, deliberate action is required to fulfill the offense. The affected person must have acted with the aim of reducing taxes or obtaining undeserved tax benefits. Establishing intent distinguishes this from lesser forms of conduct such as negligence or mistake, which are only prosecuted as regulatory offenses or attract milder penalties. In the area of tax privileges or anti-avoidance measures (abuse of arrangements, § 42 AO), the intent to save taxes is also considered.
What function does intent have in employment law?
In employment law, intent is particularly significant in the context of dismissals, warnings, and claims for damages. For example, a deliberate breach of duty (e.g., intentionally causing damage to the employer’s property or targeted violations of work duties) can justify summary dismissal (§ 626 BGB) and lead to additional claims for damages against the employee (so-called strict liability, § 823 BGB). The same applies in cases of intentional discrimination or harassment under § 15 AGG. The motivation of the actor, i.e., the intent, thus plays a central role in legal evaluation and in determining which legal consequences are attached to the conduct, such as whether mitigating circumstances can be considered or not.
What evidentiary issues arise when examining intent?
Establishing intent in a legal context is regularly a significant challenge, as it involves an internal fact that can only be inferred indirectly from objectively perceivable circumstances. Typically, it is derived from the overall conduct, the circumstances before, during, and after the act, as well as consistent witness testimony. Written statements, prior announcements, or a discernible motive may also serve as indications of intentional conduct. In the context of free evaluation of evidence, courts and authorities are obliged to determine and carefully assess all relevant circumstances, with the standard of proof varying by area of law (e.g., criminal: ‘beyond reasonable doubt’; civil: ‘preponderance of the evidence’).
How does intent differ from other subjective elements of the offense?
Intent (dolus directus of the first degree) is the strongest form of mens rea and is clearly distinguished from knowledge (dolus directus of the second degree) and conditional intent (dolus eventualis). While intent places the goal at the forefront—meaning the perpetrator actively seeks to achieve the result—knowledge is satisfied by certain knowledge of the result, even if this is not the actual goal. With conditional intent, the perpetrator merely accepts the result as possible. This differentiation is particularly important in criminal law, but also in civil law and other legal areas for determining conduct and its associated legal consequences. The exact distinction is made on the basis of motivation, objective course of events, and other provable circumstances.
