Liability for Violation of the Duty of Care and Upbringing in the Criminal Code of the Federal Republic of Germany

Abstract

The relevance of the topic of research is determined by the fact that the problem of non-fulfillment or improper fulfillment by parents (persons who replace them) of childcare responsibilities exists in all countries, regardless of the form of government, state system and income level of the population. Ukraine is in the process of integration with the European Union, so it is useful to study the foreign legislative approach to regulating responsibility for the violation of these obligations. The aim of the article is to study the German experience of establishing criminal liability for non-fulfillment of childcare obligations. Dogmatic, systemic-structural, statistical, historical-legal, formal-legal research methods were used in the research. Attention is paid to German legislation, which provides for the right and duty of parents to care for and bring up children. The genesis of the criminal law regarding the liability for violation of these duties is given. Statistical data on the number of criminal proceedings and persons convicted of this criminal offense (2010–2021) are summarized. The peculiarities of the structure of the crime provided for in § 171 of the Criminal Code of the Federal Republic of Germany have been studied; objective and subjective characteristics. The analysis was carried out on the basis of the doctrine of German criminal law and the practice of courts of general jurisdiction, in particular the Federal Supreme Court of Germany. The practice of the Federal Constitutional Court of Germany was used. Based on the study, conclusions were formulated regarding the definition of: the legal interest that is protected; signs of "gross" violation of duties; criteria for establishing the consequence of the crime, which is provided as the tort of creating danger. The peculiarities of the qualification of the crime in case of its commission in a place where an armed conflict is taking place are noted. The allocation of an independent structural section (subsection) in the Criminal Code of Ukraine, which includes criminal offenses against family, is supported. The discussion of the criminalization of harm caused by a crime provided by Art. 166 of the Criminal Code of Ukraine, creating a real threat (danger) of causing harm to the victim is proposed.