Besondere persönliche Merkmale gem. § 28 StGB:

Beispiel 1: Otto ist gewerbsmäßiger Dieb. Taxifahrer Jupp gibt ihm einen Tipp für ein Teppichlager.

Otto: § 243 Abs. 1 Nr. 3 StGB!

Jupp: §§ 243 Abs. 1 Nr. 3, 26 StGB ? – oder – §§ 242, 26 StGB ?

Beispiel 2: Taxifahrer Jupp begeht einen einfachen Diebstahl, indem er im Kaufhof einen teuren Mantel klaut. Den Tipp hat er von dem gewerbsmäßigen Dieb Otto, der von Diebstählen lebt, und mehrere Taxifahrer für sich arbeiten lässt.

Jupp: § 242 StGB !

Otto: §§ 242, 26 StGB ? – oder – §§ 243 Abs. 1 Nr. 3, 26 StGB ?

Wie wir oben bereits festgestellt haben, ist die Teilnahme grundsätzlich akzessorisch zur Haupttat. Eine strenge Anwendung der Akzessorietät führte aber zu ungerechten Ergebnissen. Während im ersten Beispiel Jupp bei strenger Akzessorietät „zu Unrecht“ entsprechend der Haupttat bestraft würde, würde Otto im zweiten Beispiel „zu Unrecht“ privilegiert, wenn für ihn die Haupttat maßgeblich wäre.

Derart unbefriedigenden Resultaten versucht nun § 28 StGB entgegenzuwirken mit einer zusätzlichen Akzessorietätslockerung. Schwieriges Problem! Wir nähern uns ihm in vier kleinen Schritten.

Schritt 1: Was sind besondere persönliche Merkmale i.S.v. § 28 StGB?

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Schritt 2: Feststellung, ob bei einem der Beteiligten ein solches persönliches Merkmal vorliegt.

Schritt 3: Feststellung, ob es sich um ein strafbegründendes oder strafmodifizierendes persönliches Merkmal handelt.

B!41

Ob oder vorliegt, ergibt sich durch Auslegung des jeweiligen Tatbestandes.

  • Qualifizierungen und Privilegierungen gehören zu den strafschärfenden bzw. strafmildernden Merkmalen (§§ 133 Abs. 3; 213; 221; 260; 292 Abs. 2, 340).

  • Die Amtseigenschaft in § 348, die Arzteigenschaft in §§ 203 Abs. 1 Nr. 1, 278, das Treueverhältnis bei § 266 wirken strafbegründend, da sie den Grundtatbestand erst „begründen“.

Schritt 4: Liegen persönliche Merkmale vor, die die Strafbarkeit begründen, so gilt § 28 Abs. 1 StGB: Fehlen sie beim Anstifter oder Gehilfen, ist dessen Strafe zu mildern.

Liegen persönliche Merkmale vor, die die Strafbarkeit modifizieren, gilt § 28 Abs. 2 StGB: Sie sind nur bei dem zu berücksichtigen, bei dem sie vorliegen.

Problemfall Amtsdelikte: Liegen Amtsdelikte vor, ist zu differenzieren: Diese können nämlich zum einen strafbegründend sein mit der Folge aus § 28 Abs. 1 StGB (echte Amtsdelikte, bei denen die Amtseigenschaft strafbegründend wirkt: §§ 331, 332, 336, 334, 345, 348 StGB), zum anderen straferhöhend mit der Folge aus § 28 Abs. 2 StGB (unechte Amtsdelikte, bei denen die Amtseigenschaft strafschärfend wirkt, die aber grundsätzlich von jedermann begangen werden können: § 223 zu § 340; § 120 Abs. 1 zu § 120 Abs. 2; § 133 Abs. 1 zu § 133 Abs. 3).

Problemfall Mord: Liegen Mordfälle vor, so müssen Sie sich entscheiden, ob Sie dem BGH folgen oder der Literatur. Der BGH nimmt an, dass es sich bei Mord und Totschlag um zwei völlig selbständige Tatbestände handelt, die nichts miteinander zu tun haben (so wie § 242 zu § 263).

Folge: Bei § 211 StGB handelt es sich um strafbegründende Merkmale, also ist § 28 Abs.1 StGB anzuwenden. Nach der Literatur wird dagegen der Mord gegenüber dem Totschlag als reine Qualifikation gesehen („Mord ist qualifizierter Totschlag“), so dass § 28 Abs. 2 StGB anzuwenden ist. Hinter der zunächst auf den ersten Blick völlig unverständlichen Auffassung des BGH, die Rechtsgefühl und Wortlaut widerspricht, steckt eine metaphysische Auffassung über den Mord als völlig vereinzeltes, singuläres, einmaliges, schwerstes Verbrechen überhaupt, das keinen „Grundtatbestand“ haben kann.

Lassen Sie sich doch durch den § 28 StGB nicht gleich entmutigen! Lassen Sie Ihre Aufbruchstimmung nicht abbrechen. Lesen Sie den Teil zu § 28 StGB einfach noch einmal!

Fallbasierte Übersicht zu § 28 StGB

(alle §§ entstammen dem StGB)

B!42

141 Gedanken zu „Besondere persönliche Merkmale gem. § 28 StGB:“

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