Einschränkung des Notwehrrechts bei unterlassener Vorfeldvermeidung potenzieller Angriffe
Die japanische Diskussion als Anregung für Deutschland
Abstract
In 2017, the Japanese Supreme Court made a decision regarding the restriction of the right of self-defense. This decision recognizes that in certain cases, the person under attack is obliged to avoid an attack in advance and/or to request state assistance in advance. In Japan, there is a fierce debate between the academic view that supports this decision and the one that refers to the prevailing view in Germany. The latter emphasizes the legal maxim “Das Recht braucht dem Unrecht nicht zu weichen (Right need never yield to Wrong)” and is strongly opposed to imposing these obligations on the person attacked. This article puts forward the following points in order to resolve this conflict. Firstly, in both Japan and Germany it is argued that these obligations can be imposed on the person attacked on the basis of the principle of the primacy of state authority. Secondly, it is shown that restrictions of the right to selfdefense based on this principle can already be found for the requirements of “attack” and “imminence”. Restrictions of the right to self-defense in the case of extreme disproportion can and should also be understood as being based on this principle. Thirdly, it can be seen that, although it depends on an assessment of the significance of the general freedom to act (allgemeine Handlungsfreiheit) whether such obligations can be imposed on the person under attack, the obligation to avoid an attack in case of a life-threatening countermeasure and/or to request public assistance can also exist in Germany. This is because Germany has a special rule for the necessity assessment when it comes to lifethreatening countermeasures. If the restriction of the right of self-defense in the case of so-called defensive provocation is to be recognized, it is also possible to impose an obligation to avoid an attack in advance and/or to request public assistance in advance, at least if the person attacked anticipates the attack in advance and also expects the countermeasure to be life-threatening. Not only in Japan, but also in Germany, where there has been hesitation to date to impose these obligations on the attacked, the discussion about this should be deepened.
(The editors)
