Covers the criminal offense

Criminal law


Criminal law is a methodologically independent part of public law, in which sometimes severe state sanctions are provided for culpably committed injustices. The type and level of sanctions vary from state to state and do not follow a uniform terminology; however, mostly imprisonment is provided for crimes and fines for lighter offenses. Capital crimes such as murder carry the death penalty in some states. However, international human rights protection is increasingly replacing the death penalty by life imprisonment.


The substantive criminal law describes the prerequisites for criminal liability (offense) and their legal consequences. It is regulated by law in the Criminal Code (StGB) and in numerous additional criminal law, specialized provisions (for example in the Foreign Trade Act or the Medicines Act).

Formal criminal law includes criminal procedure law, which describes the “how” of enforcing substantive criminal law (legal sources for this are primarily the Code of Criminal Procedure and the Courts Constitution Act).

The law of administrative offenses is part of criminal law in the broader sense, because it follows the methods of criminal law and is similar in procedure. The sanctions are mostly fines, which as a rule remain well below fines and can be set at a flat rate by means of a catalog.

Concept of deed

A central concept of criminal law is the act. The term is misleading insofar as a non-act, namely an omission, can be punishable. In any case, the action or non-action must be goal-oriented and not just a reflex, for example. Successful crimes (e.g. manslaughter, bodily harm) also require that this action or failure to act has caused a success. This success must also be attributable, i. H. it must not have been completely improbable or unpredictable. Furthermore, the act must in principle have been committed intentionally. For some acts, negligent action is sufficient. If these conditions are met, the offense is met. But only acts that are illegal can be punished. An act for which there is no justification is illegal. A reason for justification could be self-defense, for example.


The unlawful offender must also act culpably (personally accusable). Only when these three conditions - factuality, illegality, guilt - are met is a penalty pronounced. If someone has committed a crime that is not justified but has not acted culpably, for example because he is mentally ill, no penalty can be imposed. Instead, measures of improvement and security can be pronounced.

In the case of intentional criminal offenses, German criminal law distinguishes between different forms of participation: perpetration (direct offender, indirect offender, accomplice) and participation (inciting, aiding and abetting). In addition, the doctrine of criminal law knows the side offender that is not described by law.


In the case of negligence, on the other hand, there is only the perpetrator. In contrast to this, the Austrian criminal law (also in Denmark and Italy) only knows the concept of the unit offender; So there is no distinction between someone who has committed a criminal offense and someone who has only helped him (a comparable regulation applies in German law on administrative offenses).

Objective and purpose of criminal law
Criminal law is linked to the violation of protected legal interests. Because of the constitutional principle of proportionality, the legislative use of criminal law should always only be the ultima ratio (last resort). This means that the violation of legal interests should only be threatened with punishment if sanctions under civil and administrative law are no longer sufficient to bring about effective protection of legal interests. That is why criminal law is always fragmentary. It does not completely cover every morally reprehensible behavior or even the entirety of social and societal entanglements, but merely criminalizes individual behaviors that the legislature considers to be particularly socially harmful.

According to the prevailing view today, the main goal of criminal law is not to bring about justice in a legal society, but to maintain legal peace. To this end, it acts both preventively and repressively on perpetrators and society. In order to avoid reducing the victim to a pure object of criminal law, procedural law provides for participation as a joint plaintiff in highly personal legal interests, e.g. B. assault and rape. The offender-victim compensation is known as a legal consequence.

Principle: No punishment without a law
The substantive criminal law is shaped by the principle "No punishment without law" (nulla poena sine lege); it enjoys constitutional status (cf. Art. 103 para. 2 of the Basic Law). This principle contains the following individual requirements, two of which are aimed at the legislature and two at the legal practitioner:

Law of certainty: - nulla poena sine lege certa - The wording of the law must be sufficiently precise. However, the legislature is not prevented from using terms that require an assessment by the user of the law (e.g. "high damage", "reprehensible"), if the actual circumstances cannot be understood differently and the meaning of the respective term with the generally recognized Methods of interpretation can be determined.
Non-retroactivity: - nulla poena sine lege praevia - The criminal liability provision must have been valid as a law at the time of the offense. Retroactive criminal liability is not possible. According to the prevailing view, this does not refer to the prerequisites for criminal prosecution, but exclusively to substantive criminal law. The statute of limitations for murder in the FRG could be extended several times up to the current regulation (no statute of limitations).
Prohibition of analogy: - nulla poena sine lege stricta - In substantive criminal law, the use of analogies to the detriment of the accused is prohibited. The delimitation of interpretation and analogy determines the limit of the wording of the respective standard. In this respect, this principle supplements the requirement of certainty: If the legislature has to formulate precisely, the law user must not circumvent this by exceeding the wording. However, an analogous application of regulations in favor of the offender is permissible.
Prohibition of customary law: - nulla poena sine lege scripta - the judges are prevented from using customary law to justify punishment. Since the core area of ​​criminal law has long been codified, the prohibition of customary law is in fact no longer applicable. Justification by common law is not prohibited. Consent or the justifying conflict of duties may serve as an example. Overall, the prohibition of analogy and the prohibition of customary law prohibit the judges from creating facts and legal consequences through legal training.


Aim and purpose of punishment
With regard to criminal liability, criminal law puts the offense in the foreground, for the legal consequence - i.e. punishment or measure, the perpetrator's personality must also be taken into account. German criminal law combines various purposes of punishment (which are derived from so-called theories of purpose of punishment). First of all, the guilt of the perpetrator should be atoned for by the penalty (guilt principle). In addition, the offender should also be rehabilitated (positive special prevention) and deterred from committing further crimes (negative special prevention). Furthermore, citizens should be deterred from committing criminal offenses (negative general prevention) and, in general, society's trust in the stability and enforcement power of the legal system should be strengthened (positive general prevention). In the last few decades, the "locking up" of dangerous perpetrators to increase the security of the population has become increasingly popular as a punitive purpose. The idea of ​​“custody of criminals dangerous to the public” is on the rise (see also preventive detention). However, this contradicts the current legal situation (§ 2 StVollzG). According to this, the goal of the prison sentence is to induce the prisoner to lead a righteous way of life (prison goal). The protection of the general public is at best to be regarded as a subordinate enforcement objective; it is also disputed whether this is actually an enforcement goal.

A distinction must be made between so-called main and secondary penalties. The main punishments are imprisonment and fines.

The content of the custodial sentence consists in restricting the prisoner's freedom of movement, since it is precisely this need that people consider to be particularly essential and a restriction is accordingly perceived as a serious evil.


The content of the fine consists in the compulsory renunciation of consumption. This is based on the assumption that consumption has a high priority in today's society and that the perpetrator perceives doing without it as an infliction of evil. In order to ensure a just punitive effect for all income groups, the system of daily rates is used in Germany.

A daily rate usually corresponds to the average net income of the perpetrator on one day and is set from (at least) five (for low-income earners) to five thousand euros (for wealthy) § 40 StGB. Maintenance obligations are taken into account. This takes into account the different income levels of the perpetrators. If the fine is not enforceable, then there is a custodial sentence in the amount of the number of daily rates. Often the opportunity is given to work off the fine through community service. There is no entitlement to it. The main problem with fines is that (according to prevailing opinion) the payment of a fine by third parties is permissible, which means that the fine may not have any effect.


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