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Criminal Law College

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Submitted By juliehoydal
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Partene i denne saken er båteieren, Per Ås og Harald Holm.
Rettsspørsmålet er om Per Ås og Harald Holm kan straffes for tyveri, (jf. straffeloven §257)
Lovhjemmel
I straffeloven §257 handler det om tyveri. ”For tyveri straffes den som borttar eller medvirker til å bortta en gjenstand som helt eller delvis tilhører en annen, i hensikt å skaffe seg eller andre en uberettiget vinning ved tilegnelsen av gjenstanden”. I dette tilfellet var båten i båteierens besittelse, selv om det var Ås og Holm som brukte den. Ingen av de to hadde noen varig eller selvstendig rådighet over båten.
Per Ås og Harald Holms handling stemmer med gjerningsbeskrivelsen i straffeloven §257 – de borttok en gjenstand som tilhører en annen, og de skaffet seg en uberettiget vinning i besittelsen.
Derfor er straffevilkåret om lovhjemmel oppfylt. Drøftelse
Straffefrihetsgrunner:
I noen tilfeller utvider en straffefrihetsgrunn handlefriheten, og kan føre til at en ellers straffbar handling blir lovlig.
Nødrett blir behandlet i straffeloven §47, og nødverge blir behandlet i §48.
I straffeloven §47 står det at man ikke kan straffes for en handling gjort i den hensikt å redde en person eller gods fra fare. I denne oppgaven er snakk om at Per Ås og Harald Holm stjal båten fordi de var underernært og sliten etter en lang tur, i tillegg til at Holm ble tatt av strømmen. Selv om det var en skremmende opplevelse å bli tatt av strømmen, var det ikke noen fare for at Harald Holm ikke kunne gjennomføre turen til fots. Derfor kan det ikke sies at deres handling var en nødrett for å redde en person eller en gjenstand.
Handlingen de foretok seg, kan heller ikke sies å være nødverge, (jf. straffeloven §48). Nødverge gjelder kun når det er snakk om angrep på person.
Derfor er straffevilkåret om ikke straffefrihet oppfylt.

Tilregnelighet:
Det er noen forhold som behandles i straffeloven som kan føre til utilregnelighet. Disse er lav alder, psykose, psykisk utviklingshemming i høy grad og bevisstløshet, unntatt bevisstløshet som skyldes selvforskyldt rus.
Verken Ås eller Holm kan kjennes utilregnelig etter noen av disse punktene. Begge to er over den kriminelle lavalder.
Det forutsettes at de ikke var under noen form for psykose. Det forutsettes videre at ingen av de er/var psykisk utviklingshemmet i høy grad, og at de ikke var bevisstløs.
Vilkåret om tilregnelighet er derfor oppfylt.

Skyld:
Skyldkravet i straffeloven er forsett (jf. straffeloven §40), med mindre det er bestemt eller at også den uaktsomme handlingen er straffbar. Forsett vil si at handlingen er gjort med vilje.
Hensiktsforsett foreligger når tanken med en straffbar handling er å oppnå et bestemt resultat. Etter oppgaven å dømme tok Ås og Holm båten fordi de var utslitt og sulten, og ville hjem så fort som mulig. De var fullt klar over at det var galt å ta båten, men de tenkte at ingen kom til å oppdage at de stjal den da det var kveld og ingen mennesker i sikte.
I denne saken foreligger det altså et forsett, som er et skyldkrav i straffeloven, (jf. straffeloven §40.)
Vilkåret om skyld er derfor oppfylt. Konklusjon:
Ettersom at alle straffevilkårene er oppfylt, kan Per Ås og Harald Holm straffes for tyveri etter straffeloven §257.

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