Rücksichtslosigkeit. Possibility, Potential, and Limits of a New Central Category between Intent and Negligence
In German criminal-law doctrine, deliberate high-risk behavior is strictly dichotomized as either intentional or negligent behavior. The border line runs between dolus eventualis (“conditional intent”) and bewusste Fahrlässigkeit (“conscious negligence”), although this is accompanied by problems with regard to proving intent in the trial and determining punishment proportionate to the wrongness of the deed and the guilt of the offender. Although there is no lack of criticism of the prevailing distinction between dolus eventualis and bewusste Fahrlässigkeit, in most cases this criticism – as well as the responsive defense of the distinction – is not concerned with the dichotomy as such but rather with the question of the correct criterion of delimitation within the prevailing dichotomy. This research project seeks to put this paradigm to the test and to investigate whether a trichotomous distinction of fault elements in German criminal law would be preferable. The research hypothesis is that the introduction of Rücksichtslosigkeit (“disregard”)* as an independent form of wrongdoing between intent and negligence largely solves the aforementioned problems without causing unacceptable friction in the criminal-law doctrine. There has yet to have been a broad-based study on this topic. Isolated discussions of the merits of a trichotomy of fault elements have appeared in the scholarly literature, but these have addressed only a few aspects of the problem and have not triggered a sustained discussion in German legal scholarship. This project aims to address this research desideratum. It will do so by combining a doctrinal question with an approach based on criminal-law theory and on a legal comparison with Anglo-American law: First, the project will analyze the German doctrinal distinction between intent and negligence, especially with regard to evaluative incoherences and practical problems resulting from the dichotomy itself. Second, the project will develop a solution that addresses these deficits from a criminal-law-theory perspective, addressing in particular the distinctive features of Vorsatz (“intent”) as a specific form of subjective imputation. Additionally, the solution will be further refined on the basis of a comparative analysis of the Anglo-American category of “recklessness.” The results of this process will then be reviewed with an eye to their implementation into German criminal-law doctrine and codification in statutes.
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