Concept and Fundamentals of the Omission Offense
An omission offense in German criminal law refers to a criminal act committed not through active conduct, but by failing to perform an action that is legally required. The perpetrator is therefore accused of not carrying out a legally mandated action that was intended to prevent a criminal result. Omission offenses thus represent a fundamental counterpart to commission offenses, where the focus is on prohibited conduct.
Omission offenses hold significant importance in many areas of law, particularly in criminal law, but also in fields such as civil law, administrative law, and regulatory offenses. Their legal framework is especially complex because they often depend on specific guarantor positions and duties of care.
Statutory Basis
The central provision in the German Criminal Code (StGB) is § 13 StGB. This governs criminal liability by omission and distinguishes between genuine and quasi-omission offenses:
- Genuine Omission Offenses: Offenses expressly characterized by law as crimes of omission (e.g., failure to render assistance under § 323c StGB).
- Quasi-Omission Offenses: Fulfillment of a criminal offense by omission in the presence of a legal duty to act (§ 13 para. 1 StGB).
Types of Omission Offenses
Genuine and Quasi-Omission Offenses
Genuine Omission Offenses
Genuine omission offenses are explicitly defined by law so that simply failing to perform a required action is punishable. A typical example is § 323c StGB (failure to render assistance). Criminal liability results solely from the failure to perform one’s duty, with no need for a special guarantor position.
Quasi-Omission Offenses
In the case of quasi-omission offenses, criminal liability arises when the offender, by omission, brings about the criminal result just as if he had acted. This occurs, for example, when a person who is responsible for another by law, contract, preceding wrongful conduct, or due to a close living relationship (so-called ‘guarantor’), fails to take necessary action to avert the result. Prominent examples include failure to prevent manslaughter (§ 212 para. 1 StGB in conjunction with § 13 StGB) or failure to intervene in child abuse by persons with a duty to protect.
Forms of Offenses: Commission and Omission Offenses
The omission offense stands in contrast to the commission offense. While a commission offense is committed through active conduct (e.g., theft), the distinctive feature of an omission offense is that the punishable act lies in inaction, that is, simply remaining inactive.
Requirements for Criminal Liability in Omission Offenses
Factual Elements
Several requirements must be met for the criminal liability of an omission offense:
- Duties to Act Related to the Perpetrator (Guarantor Duty): The offender must be obligated to take action. This duty can arise from law, contract, prior conduct creating risk, assumption of responsibility, or a close living relationship.
- Possibility to Avert the Result: The required action must be feasible and reasonable for the offender (“physically and realistically possible”).
- Causality of the Omission: There must be a hypothetical causal connection between the omission and the result—that is, had the required action been performed, the result would have been avoided with near certainty.
- Objective Attribution: The occurrence of the criminal result must be objectively attributable to the offender.
- Factual Result: The omitted action must concern a result covered by the offense, such as death in the case of failure to prevent manslaughter.
Subjective Elements
As with commission offenses, intention or negligence is required for omission offenses, depending on the definition of the underlying offense.
Intent Offense
In an intentional omission offense, the offender must know of the legal duty to act and nevertheless deliberately refrain from acting.
Negligence Offense
Criminal liability for negligent omission only arises if the law expressly provides for it. It is examined whether the offender can be blamed for breaching a duty of care.
Guarantor Position as a Central Feature of Quasi-Omission Offenses
The guarantor position is a core element of quasi-omission offenses. It describes the legal obligation of an individual to prevent a certain result in relation to others. The most important groups of cases are:
- Duty as Guarantor by Law: (§ 13 para. 1 StGB; e.g., parent-child relationship)
- Contractual Acceptance: Contractual obligation to provide care (e.g., care staff)
- Community of Risk: Assumption of special responsibility within a close community
- Duty Resulting from Prior Dangerous Conduct: The offender has created a source of danger and is therefore obliged to avert it.
The nature and scope of the guarantor duty are determined by law, contract, and the circumstances of the individual case.
Issues of Distinction and Specific Features
Distinction from Commission Offense
Distinguishing between commission and omission offenses is of considerable importance. The decisive factor is whether a result was caused by active conduct (act) or whether a duty of protection was not fulfilled (omission). Hybrid forms (‘action by omission’) can be problematic in individual cases and are the subject of intense academic discussion.
Concurrence of Offenses
As a rule, an omission offense is subsumed under an intentional commission offense of the same offense (real concurrence). If there are several guarantor duties, the treatment under the law of concurrence must be carried out with care.
Sentencing and Legal Consequences
The penalty for a quasi-omission offense corresponds to that for the corresponding active offense unless the law expressly provides for a lesser or different penalty. Special circumstances may arise, for example, in cases of less serious culpability or where a justifying emergency exists.
Special Situations and Recent Court Rulings
Case law has clarified the concept of omission offenses in numerous decisions, particularly in the protection of persons, duties of care, and in distinguishing the autonomous conduct of third parties. The emergence of new forms of living and society (e.g., assisted living, medical treatment) continually creates a need for updated adjustments.
Omission Offenses in International Comparison
Comparable regulations can also be found in other European legal systems and in international criminal law, although the doctrinal classification and specific details—especially with regard to guarantor duties—may differ.
Significance and Criticism
Omission offenses especially reflect the mandate for individual protection and social solidarity. However, they also raise questions about reasonableness, practical application in everyday life, and the principle of culpability. In particular, the determination of guarantor status and the requirements for hypothetical causality are always subject to critical discussion in legal scholarship.
Literature References and Further Sources
- Fischer, Thomas: Strafgesetzbuch und Nebengesetze, Kommentar (current edition)
- Roxin, Claus: Strafrecht Allgemeiner Teil
- Wessels/Beulke: Strafrecht Allgemeiner Teil
- BGHSt Case Law on § 13 StGB
Summary
Omission offenses hold a central position in the German legal system and ensure that individual and societal duties of protection can be effectively enforced by sanctioning non-action. They are highly complex, particularly with regard to the requirements of guarantor status, causality, and objective attribution. Proper application in legal practice and academia is crucial for maintaining legal peace and the rule of law.
Frequently Asked Questions
When is an omission offense punishable?
An omission offense is punishable when a person fails to carry out a legally required act and, as a result, a criminal result occurs that the law intends to prevent. A prerequisite is that a so-called guarantor status exists—that is, the offender has a special legal duty to avert the result, arising from law, contract, creation of risk (infringement), or a factual community. Furthermore, the omission must be causally linked to the result, meaning that, had the required action been taken, the result would almost certainly not have occurred. In addition, an omission offense is generally only punishable if the law explicitly provides for it or equates it with active conduct, such as in § 13 StGB (Criminal Code). Criminal liability also requires intention or—if negligence offenses are involved—negligent behavior with regard to all offense elements.
When does a guarantor status arise in the context of an omission offense?
A guarantor status, which forms the basis for the special duty to act in omission offenses, may arise from various sources. Firstly, the law itself can establish a guarantor position (legal guarantor status, e.g., parents for their children under § 1626 BGB). Secondly, it can arise from a contract (contractual guarantor status, e.g., doctor-patient relationship, teachers’ supervisory duty). Another possible source is prior wrongful conduct (infringement), where someone has created a risk to another’s legal interests and is therefore obligated to avert this risk. Finally, guarantor status can arise from a particularly close community or relationship, such as living or household communities. These different sources are precisely distinguished by case law and legal literature and are reviewed on a case-by-case basis.
How is causality assessed in omission offenses?
In omission offenses, a central aspect for criminal liability is whether there is a causal link, also known as causality, between the omission and the resulting harm. Unlike commission offenses, omission offenses require an examination of so-called hypothetical causality. This means it must be established whether the result would have been avoided if the obligated person had performed the required action. The key formula is: the required action cannot be hypothetically added without the result being eliminated with near certainty. This assessment is often difficult, especially where causal relationships are unclear, and requires careful evaluation of the specific facts and relevant medical or technical contexts.
What is the difference between genuine and quasi-omission offenses?
Genuine omission offenses and quasi-omission offenses differ mainly in their legal foundation. Genuine omission offenses are expressly defined as offenses of omission in the law, such as failure to render assistance under § 323c StGB. Quasi-omission offenses, on the other hand, are based on general criminal offenses that ordinarily require active conduct (e.g., assault, manslaughter), but under § 13 StGB can also be committed by omission if the perpetrator has a guarantor status. As a result, omission is equated with active conduct and can lead to criminal liability, even though the statute does not explicitly state this in the particular provision. This distinction is of considerable practical importance for the steps of legal assessment and the application of criminal statutes.
What is the significance of the subjective element in omission offenses?
The subjective element—that is, the offender’s internal attitude toward the crime—remains crucial in omission offenses. For intentional omission offenses, it is required that the perpetrator knowingly and willfully fails to carry out the required action, and accepts or at least considers possible the resulting offense. For negligent omission, it is sufficient if the perpetrator neglected the duty of care owed. The intent must also encompass all objective elements of the offense, particularly the existence of the guarantor status and the recognizability of the dangerous situation. If there is no intent or negligence, there is no criminal liability.
How are attempt and withdrawal treated in omission offenses?
In the area of omission offenses, attempt is generally possible just as with commission offenses, provided it involves a felony or the law expressly allows it. An attempt occurs when the offender, despite a duty to act, fails to perform a rescue action, but the criminal result has not (yet) occurred. Withdrawal is generally possible if the perpetrator subsequently fulfills the duty to rescue in time and thereby prevents the harmful result (‘active repentance’). The specifics follow the general rules of criminal law and are subject to particularities given the range of action available to the guarantor.
What special difficulties arise in distinguishing between omission and commission?
Distinguishing between conduct and omission is often difficult in practice, since many situations can be viewed both as active conduct and as wrongful omission. The decisive factor is whether the main focus of criminal blame lies in the active conduct or in the omission. The so-called focus theory assists with this assessment; it looks at where the primary wrongful aspect lies. If the focus of culpability is in active conduct, a commission offense is present; otherwise, it is an omission offense. This distinction is particularly relevant for the applicability of § 13 StGB as well as for sentencing and concurrence among multiple offenses.
