Term and Definition of omni modo facturus
omni modo facturus is a Latin legal term that literally means “determined to commit the act in any case” or “ready to commit the act by any means.” The term originates from criminal law and refers to a person who is determined to carry out a specific criminal act, regardless of possible obstacles or how it is carried out. The phrase plays a significant role, especially in distinguishing between attempt and complicity, as well as in the evaluation of criminal acts of participation.
Historical Development and Origin
The term omni modo facturus originally comes from classical Roman legal doctrine and can be found in numerous legal sources and commentaries distinguishing between direct perpetration, participation, and preparatory acts. Over the centuries, the term—especially in German criminal law—has evolved into a specific legal concept and has become central in the doctrine of attempt and participation (instigation, aiding and abetting).
Areas of Application in Criminal Law
Distinction: Perpetrator, Participant, and Attempt
In German criminal law, omni modo facturus is particularly relevant in the context of participation (§§ 26, 27 StGB) and attempt (§ 22 StGB). The assessment of whether a person was “omni modo facturus” often determines to what extent incitement or aiding and abetting is punishable at all.
Significance for Instigation (§ 26 StGB)
According to prevailing opinion, instigation requires that the main perpetrator has not yet made a firm decision to commit the act and is only persuaded to do so by the instigation. However, if the perpetrator is already “omni modo facturus,” i.e., determined to act regardless of external influences, the punishability of instigation lapses. A person who merely reinforces the plan of someone already firmly decided does not fulfill the requirements for instigation, but can, at most, be held liable for aiding and abetting.
Significance for Aiding and Abetting (§ 27 StGB)
In contrast to instigation, assistance can be provided to a perpetrator who is already “omni modo facturus” through supportive actions. The punishability for aiding and abetting remains unaffected, as it does not require influencing the will, but covers any type of support or facilitation of the crime.
Attempt and Error: Irrelevant for Determination
In the context of the attempt, it should be noted that the status of “omni modo facturus” does not categorize attempts within the meaning of § 22 StGB. Rather, the term distinguishes between mental precursors and reinforcement actions during preparation or participation in the crime.
Significance in Case Law and Literature
Case Law
The highest German courts have recognized the term omni modo facturus in numerous landmark decisions as a criterion for distinguishing between instigation and aiding and abetting. This applies, for example, in cases where a third party intervenes only after the perpetrator is already firmly decided. In such scenarios, the causal influence on the main perpetrator’s will, which is essential for criminal instigation, is lacking.
Literature
Academic literature discusses the term both dogmatically and in its practical significance for sentencing and defining the degree of participation. There is regular controversy regarding the provability of a firm intention to commit the crime and the precise distinction between motivation and mere reinforcement of an existing determination.
Practical Examples
Example 1: Act of Instigation
A person (B) convinces another person (A) to commit a crime. A is undecided and not finally determined to commit the act. B incites A to do it. Here, the decision to act arises due to the instigation—A is not omni modo facturus.
Example 2: Reinforcement of a Firm Intention
A already has the firm will to commit the crime without external influence (A is omni modo facturus). B merely encourages A to proceed as planned. In this case, B is not an instigator and can only be held liable for aiding and abetting, because A was already firmly determined.
Systematic Classification and Critique
The term is systematically assigned to the general doctrine of perpetration and participation. Critics point out that its practical application is fraught with significant evidentiary difficulties, as the degree of determination at the time of the crime is often difficult to ascertain. The abstract distinction between a final determination to commit the act and mere willingness to commit it remains a topic of ongoing discussion.
Distinction from Similar Terms
Distinguishing from Preparation and Attempt
In contrast to omni modo facturus, which focuses on the determination to commit the act, the attempt is characterized by the perpetrator commencing the act (§ 22 StGB). Preparatory acts are present as long as a decision to commit the act has not yet been made or has not yet been put into action.
Related Terms
- Animus auctoris: Perpetrator’s intent
- Animus socii: Intent of the participant (instigator/aiding and abetting)
- Decision to Commit the Act: Willingness to commit a criminal act; decisive for attempt and participation
Significance in International Law
In international comparison, the term omni modo facturus is used mainly in continental European criminal law and is only paraphrased in Anglo-American law, not used in this terminology. Nevertheless, comparable underlying concepts—especially for distinguishing between perpetration and participation—can be found in other legal systems as well.
Summary
omni modo facturus describes a person who is firmly determined to commit the act, independently of external influences. The term is central for distinguishing between instigation and aiding and abetting, and decisively influences whether participation in the crime is considered incitement or merely aiding and abetting under German criminal law. Its effect is thus primarily in the area of participation in criminal behavior and is of considerable practical relevance, especially in the evaluation of evidence and legal classification.
Frequently Asked Questions
What role does omni modo facturus play in criminal law?
In the context of criminal law, the term “omni modo facturus” is of central importance, especially in the context of attempted offenses (§ 22 StGB). It denotes the stage where, in the perpetrator’s perception, he directly sets about committing the crime, having done everything necessary to fulfill the legal definition, and further execution depends only on external circumstances. Determining whether someone is at this stage is crucial for distinguishing between a punishable attempt and a non-punishable preparatory act. Case law requires a concrete overall assessment of the specific conduct, with the focus on whether, according to the perpetrator’s plan, only the completion of the act remains to be done. It is irrelevant whether objectively some intermediate steps are still necessary, as long as, from the perpetrator’s point of view, everything required for fulfilling the act’s legal definition has been prepared.
How does case law assess the timing of omni modo facturus?
According to the courts, determining the point in time at which a person is considered omni modo facturus must always take into account the subjective view of the perpetrator and the objective circumstances. The prevailing case law focuses on the act plan and the perpetrator’s inner intent. It requires that the perpetrator has taken all essential measures necessary for completion, so that further execution depends only on external factors, such as a favorable opportunity or the occurrence of uncontrollable events. Especially in cases involving multiple acts, such as fraud or robbery, courts must examine whether with the last act required for completion, the perpetrator was omni modo facturus or whether further essential steps remained.
What is the significance of omni modo facturus for distinguishing between withdrawal and completion?
Omni modo facturus is of great importance in connection with withdrawal exempting from punishment (§ 24 StGB). Withdrawal from an attempt is generally only possible as long as the perpetrator has crossed the threshold of “now it’s starting,” but the crime has not yet been completed. If the perpetrator is omni modo facturus, current opinion holds that he can still exempt himself from punishment by actively preventing the result (for example, by rescuing the victim). This moment thus marks the last opportunity for withdrawal. Once all actions have been performed, withdrawal is only possible through the perpetrator’s or participant’s active conduct (not by mere inactivity).
What is the relevance of omni modo facturus in joint perpetration and participation?
In cases of joint perpetration (§ 25 para. 2 StGB) and participation (§§ 26, 27 StGB), the concept of omni modo facturus serves as a reference point for determining when the stage of criminal attempt has been reached for all involved. In joint perpetration, it is relevant when the co-perpetrators, according to the act plan and objective facts, have initiated all necessary measures. Only at this point are all liable for the result-qualifying act, even if some participants have not yet actively participated in the commission. In cases of instigation (attempted instigation under § 30 StGB), the decisive factor is when the instigated person is omni modo facturus, so an attempt at instigation of a felony is only present if this stage is reached by the main perpetrator.
How does the term omni modo facturus affect sentencing?
In principle, sentencing takes into account the stage of commission of the crime. The status of omni modo facturus can have either aggravating or mitigating effects. If the perpetrator has already completed all actions required for execution, the court often considers this as an indicator of heightened determination and criminal energy when assessing the penalty. On the other hand, a voluntary withdrawal by the perpetrator after reaching this stage can be considered highly mitigating, as the criminal result was prevented despite being imminent.
What case groups and examples does case law most commonly address regarding omni modo facturus?
Case law deals with the term omni modo facturus in various typical constellations. These include, for example, commencing a residential burglary, assembling an explosive device, aiming a weapon during an attempted homicide, or initiating transfers during computer fraud. It is always crucial whether, according to his own plan, the perpetrator has begun to carry out the act itself. Frequently discussed are cases where the perpetrator has objectively prepared everything, but was not yet subjectively determined to execute, or the reverse. Each case is assessed by comprehensive evaluation of the circumstances and the perpetrator’s intent.
