CHAPTER IV Special Part (der Besondere Teil)

Manual of German Law › Part V CRIMINAL LAW (2008)

Author: K. Neumann

Author position: Sir

Pages: 96

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CHAPTER IV Special Part (der Besondere Teil)

SECTION I - INTRODUCTORY REMARKS

72. The 'General Part ', as has been shown, deals with the essential principles of German Criminal Law as a whole, while the 'Special Part' is devoted to the rules relating to individual offences. There are such large numbers of these that in order to present them in some kind of systematic or logical order, moder writers in general find it useful to group them according to the nature of the protected interests against which the various offences are aimed. The StGB itself attempts something of the kind, but its classifications of the various groups of offences are too narrow and are therefore apt to degenerate into mere lists. A really clear survey is only possible-in the opinion of present-day writers-if the grouping is wide enough to allow the various offences to fall easily and naturally into their proper categories. The simplest and therefore the clearest system of classification is that adopted by Welzel in his survey of the 'Special Part ', which he divides into:Offences against the Person-(sections II to IX below).

Offences against Property-(sections X to XI below).

Offences against the Community-(sections XII to XVII below).

Offences against the State-(sections XVIII to XXII below).

Within the scope of this present survey it is not possible to mention all the offences the constituents of which are laid down in the Special Part, still less to discuss them in detail. The less important offences will therefore either be omitted or mentioned briefly, in order to leave space for discussion of those which by any standard must be considered important.

SECTION II - HOMICIDE

73. First in order of importance among offences against the person are of course the various forms of homicide, particularly murder. Before 1941 murder was defined as the intentional premeditated killing of another person.

This conception has been replaced by an evaluation of the physical act with the help of a yardstick. (Law of 4 September, 1941, RGBI I, p. 549.) ' Murder ' is now the killing of another person for a particularly despicable motive or in a particularly heinous manner. A murder may be committed:

(a) for particularly despicable reasons, i.e. for the joy of killing, in satisfaction of a sexual urge, for greed or from other base motives;

(b) in a particularly base manner, i.e. perfidiously, or cruelly, or by dangerous means (gemeingefiihrliche Mittel-lit.) with means dangerous to the community;

Those who kill for lust and those who kill the victims they have raped are said to kill ' in satisfaction of a sexual urge '. 'Perfidiously' means more than 'cunningly'; it connotes deliberate deception and doubledealing. 'Cruelly' means the infliction of particularly severe physical or mental suffering. 'Dangerous means' are those which entail dangers to others besides the actual victim, such as arson or the use of explosives.

Murder is according to section 211, punishable by death, in certain exceptional cases by penal servitude for life. Although the death penalty has been abrogated by article 102 of the Basic Law for the German Federal Republic the fact that section 211 in the version of 1941 allowed the infliction of the death penalty is still of importance on the following reasons. As Military Government Law No. 1 provides that capital punishment is abolished for all offences which were not subject to the death penalty before 30 January, 1933, and that cruel and unusual punishments may not be inflicted, an important controversial point has arisen, namely: as capital punishment was introduced after 1933 in respect of a crime defined in a manner not known to the previous law, and as the new definition contains the words, 'or from other base motives ', is the old definition applicable in conjunction with the new? In other words, must the court when dealing with a charge of murder ascertain whether or not the perpetrator acted with premeditation? Or is only the new definition applicable? The answers to these questions must be sought along the following lines:

(a) Military Government Law No. 1 does not affect the validity of the present section 211, seeing that murderers were subject to the death penalty before 1933, and seeing that the death penalty in itself, which exists in many other countries, cannot be called a 'cruel or unusual' punishment. (Also of this opinion, Leuer von Hintiber, Strafrecht, 1948, p. 68.) (b) Instructions to Judges No. 2 state: Where the penalty has been increased since 1933, no punishment higher than the maximum permitted before 30 January, 1933, shall be inflicted. As HinUiber rightly points out, the new version of section 211 has not broadened the scope of the offence of murder, but has merely altered it, so that the applicability of the death penalty has not been extended.

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