Rechtswidrigkeit

Rechtswidrigkeit is a central concept in German criminal law that describes the unlawfulness of a conduct. For an act to be punishable, it must constitute a violation of a protected legal interest and not be justified by any legally recognized reasons. In other words, Rechtswidrigkeit means that the act goes beyond what the law allows and would be punishable if no justification applies.

The assessment of Rechtswidrigkeit occurs after establishing the factual and intentional elements of the offense (the objective and subjective Tatbestand) and before considering the offender’s culpability (Schuld). If a legally recognized justification applies, the conduct is deemed not wrongful and the offender may avoid liability, even if the act would otherwise meet the objective criteria of a crime.

Justifications (Rechtfertigungsgründe) include, for example:

- Notwehr (self-defense) or Nothilfe (defense of others) when there is an imminent threat and the force used is necessary and proportionate.

- Rechtfertigender Notstand (justified necessity) to avert an imminent danger to life, limb, or property, provided the means are appropriate and proportionate.

- Einwilligung (consent) of the offended party in certain contexts, which can negate unlawfulness if given freely and within legal limits.

- Other statutory exceptions or conflicts of duties that may excuse a specific action.

If no such justification exists, the act remains Rechtswidrig. In that case, criminal liability may follow provided the offender is also culpable (schuldhaft), meaning they possessed the requisite mental state and capacity. Rechtswidrigkeit thus separates permissible from punishable conduct within the framework of criminal liability.