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2 – Decision review: Criminal Law – The withdrawal from the failed (?) attempt of aggravated robbery

The withdrawal from the attempt and the robbery are highly relevant areas of criminal law for the exam. On the basis of the decision of the Federal Supreme Court of 24 November 2021 (4 StR 345/21) on the judgement of the Münster Regional Court of 26 May 2021 (22 KLs-61 Js 3088/20-5/21), we delve into both (1) attempted robbery and finally (2) withdrawal, whereby the focus here is on the failure of the attempt.

Removal of another’s movable property
Distinction between robbery and predatory extortion
Use of a qualified means of coercion
Connection between coercion and taking away
Qualification of § 250 II no. 1 StGB, in particular the definition of a dangerous instrument
Intention of unlawful appropriation
Failure of the attempt

News: Fundamental rights – Lawful revocation of the licence of a pharmacist convicted of adulterating cancer drugs (Bottrop pharmacist)

A pharmacist authorised to produce medicines for the treatment of cancer patients, who massively and thousands of times does not comply with the requirements of the medical prescription, thereby accepting an incalculable health risk for patients, some of whom are seriously ill, and abuses their trust for personal financial interests, is unreliable and unworthy in the sense of § 6 II BApO in conjunction with § 4 I 2 No. 2 No. 2 BApO.
(VG Gelsenkirchen, Judgement of 25.08.2022 – 18 K 3908/20)

News: General Equal Treatment Act (AGG) & Labour Law – Compensation for damages in case of discriminatory job advertisement on eBay-Kleinanzeigen (classifieds)

An advertisement on the internet platform eBay-Kleinanzeigen for applications as a “female secretary” (“Sekretärin”) obliges the advertiser to pay damages under § 15 II AGG due to a discriminatory job advertisement even if the application is made via the chat function.
(LAG Schleswig-Holstein, Judgement of June 21, 2022 – 2 SA 21/22)

News: BGB AT & Tenancy law – Rescission, cancellation and reduction in case of grossly negligent ignorance of rental defects

Without any enquiries or other expressions of interest by the tenant in the condition of the rented property, the landlord does not have to provide information about this without being asked, so that there is no deception by omission about the actual condition of the rented property. If a tenant fails to inspect a flat before renting it, although there would have been an opportunity to do so, this generally falls within the tenant’s sphere of risk.
(LG Lübeck, judgement of 7 July 2022 – 14 S 23/21)

News: Criminal law – No consent in deprivation of liberty in case of deception about travel destination

§ 239 StGB (German Criminal Code) protects the potential will to move forward, which is the point of reference for consent that excludes the offense, so that a deprivation of liberty exists if consent obtained by trickery or deception results in a non-conscious deprivation of liberty. It is merely a means to make it easier to commit the deprivation of liberty by preventing the expected resistance of the person concerned, but does not lead to an …
(BGH, judgment of 08.06.2022 – 5 StR 406/21)

News: Fundamental rights – Constitutional complaint against virus protection warning of the Federal Office for Information Security (BSI) not taken for decision

KasperskyTM ‘s constitutional complaint based on the BSI‘s war­ning that it could “conduct offensive operations itself, or be forced to attack target systems against its will, or be spied on as a victim of a cyber operation without its knowledge, or be misused as a tool for attacks against its own customers” was not accepted for decision by the BVerfG for lack of compliance with the principle of subsidiarity of the constitutional complaint (Art. 94 II 1 GG, Sec. 90 II BVerfGG).
(BVerfG, 02.06.2022 – 1 BvR 1071/22)

1 – Decision review: Tort law – Liability of minors
Liability of an eight-year-old cyclist looking back­wards for the fall of a pedestrian

The protection of minors extends throughout the applicable law. The section on tort regulates the liability of minors under § 828 of the German Civil Code, which, however, has a much wider scope of application. On the basis of the judgment of the OLG Celle of 19.02.2022 (14 U 69/19), we look at this in more detail.

News: Law of Obligations – Invalidity of General Terms and Conditions in case of a reduction of the limitation period to one year in case of health damages

General terms and conditions which bring forward the ” period of limitation for material defects” do not stand up to a review of their content in accordance with §§ 307 et seq. BGB (German Civil Code) if they exclude or limit liability for bodily injury or health damage caused by negligence or liability for other damage caused by simple negligence.
(BGH, 24.03.2022 – III ZR 263/20)

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