CHAPTER III General Part (allgeimer Teil)

Extract

---

CHAPTER III General Part (allgeimer Teil)

SECTION 1 - INTRODUCTORY REMARKS11. The 'General Part' of the StGB, as its title implies, deals not with specific offences (for definitions of these see below, Chapter IV), but with the nature of offences in general and of the punishments which may be inflicted. Logically this part of the StGB should have started with the definition of a criminal act, giving the grounds for exclusion or mitigation of punishment; this should have been followed by a survey of the various categories of offences, concluding with an analysis of the punishments.This systematic arrangement will be adopted in the following review, despite the fact that the StGB itself is arranged differently. (The 'General Part' of the Code begins with 'punishments' and deals later more or less unsystematically with the other matters).SECTION II - THE CRIMINAL ACT12. A criminal act in German law is the objectively unlawful and subjectively guilty perpetration of a deed or deeds. An act of human will is unlawful unless it is permissible under a legal provision. An unlawful act is a ' guilty ' act, if lawful action could reasonably have been expected from the person concerned.SECTION III - THE OBJECTIVE ELEMENTS OF AN OFFENCE13. The objective element of an offence is an act unlawful in itself and usually directed against the person or property (Rechtsgut) of another. German law distinguishes between acts which are criminal offences because they produce an unlawful result (Erfolgsverbrechen), and acts which as such are criminal offences merely because they manifest the will to act unlawfully. The distinction turns on the question whether the law forbids the result (the death of a person, for example) or the act itself (perjury, for example).14. In the case of Erfolgsverbrechen there must be a causal nexus between the act and the forbidden result. This 'causation theory ', i.e. the question whether a particular result is due to the action of the person concerned, is of particular importance in the case of homicide and physical injury. According to many decisions of the Reichsgericht, a 'cause ' is any factor the absence of which would have prevented the unlawful result. In the case of crimes of omission, a 'cause' is the omission of any act which, if performed would have prevented the fulfilment of the unlawful aim, see Official Reports of the Reichsgericht in Criminal matters (hereafter abbreviated RGSt)-vol. 75 p. 50.This is the so-called Bedingungstheorie (Theory of conditional factors). It is thus sufficient for an act to be one of the causes of an unlawful result even if the latter could not have been brought about without other factors.EXAMPLE: A personal attack is 'causal' even if the punishable result would not have been attained without other factors, attributable not to the attacker but to the attacked person himself (e.g. he was a bleeder, or he neglected his wound, for example), or to negligence on the part of a third party.The act or omission must always have a causal connection with the unlawful result.The decision of the CC Appeal Court (1947 No. 2 p. 102) constitutes an Example: The defendant was convicted of negligence causing death and sentenced to 12 months' imprisonment (under section 222 StGB), because he had been driving without a driving licence and without having passed the prescribed driving test. '...

See the full content of this document

---