CHAPTER III General Part (allgeimer Teil)

Author:K. Neumann

11. 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).

12. 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.

13. 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. 'I am satisfied ' said the judge of first instance, that he was negligent inasmuch as he had no driving licence.' The Appeal Court quashed the conviction, holding that it must be proved that the death was the direct result of the act of negligence. 'The question as to whether or not the defendant had a driving licence, or whether or not he has passed a driving test is not a relevant consideration by the court on this charge.' 15. The German Law distinguishes between offences of commission and omission. Offences of commission require a punishable act, offences of omission a punishable failure to act.

16. A further distinction is made between offences which injure or place in jeopardy persons or property protected by law (Rechtsgut), according to whether the law imposes sanctions only for actual injury or for danger to the Rechtsgut. The life of a person is a Rechtsgut, which is injured by murder, an offence within the first category. Exposure of a helpless person placing the life of that person in jeopardy, falls within the second category.

17. Finally German lawyers distinguish between basic elements of an offence and additional elements, which are either aggravating (verschiift, qualifiziert) or mitigating (gemildert, privilegiert).

18. The objective elements of a criminal act-i.e. the external facts, are produced by an act of human will. This may be a consciously formed decision to bring about physical event i.e. intent (Vorsatz) see section III, para. 5 supra.

19. Intent may be direct or indirect. Direct intent (dolus directus) comprises everything foreseen by the perpetrator as necessary consequence of his action.

Indirect intent (dolus eventualis) embraces the case where the perpetrator has foreseen and decided to run the risk of some though not necessary consequence of his act. Anyone who sets fire to a house knowing that is occupants will certainly lose their lives, acts with direct dolus; but if he only thinks it possible that they may be killed and, taking this into account, still sets the building alight, he is acting with dolus eventualis. Wherever the law imposes penalties for 'acting with intent' (Vorsatz) dolus eventualis suffices to constitute an offence. In some places the StGB use the expression Absichtspecific intent. Apart from the few cases in which the code put Vorsatz and A bsicht on the same footing (e.g., in section 225) it only uses the word Absicht.

i.e., specific intent, where a goal is to be achieved which transcends the immediate result of the deed itself, the wider aim being the reason for the act.

The words ' in order to ' are sometimes used in a similar sense. The escaping prisoner commits no theft of the prison clothes he is wearing, as he is not taking them away in order to convert them to his own use. Occasionally too the code uses the term ' knowingly ' or ' despite his better knowledge '. The exact meaning of this is a matter of interpretation. Often it merely signifies dolus directus or indirectus, but more usually the former alone.

20. An offence may also be committed through negligence. A person is negligent when he does not act with due care, i.e., the care which may reasonably be.demanded of him in the particular circumstances and having regard to his own personal means and capabilities-and in consequence does not forsee the ensuing result although he could have done so.

An act of negligence may be consciously committed. The perpetrator may have thought the ensuing result possible, but not have acted with sufficient care to prevent it. Acting in dereliction of a known duty does not alone constitute negligence; it is necessary that the result should be foreseeable.

Thus in RGSt vol. 59, p. 341 it was held that the contravention of police regulations by the driver of a car was not of itself punishable negligence where injury to, or death of, another person occurred. On the other hand, if a person undertakes duties which he is not equipped to perform--e.g., an unqualified medical practitioner-harmful results are sufficiently foreseeable for this constitutes negligence if such results occur in fact. In cases of unconscious negligence, the lack of care may consist in the fact that the perpetrator did not even envisage the possibility of punishable consequence.

Negligence is only punishable where legislation expressly or impliedly so provides. Most petty offences may be committed negligently. Attempts can never be negligent. Recklessness (Leichfertigkeit) constitutes aggravated negligence.

21. The unlawful nature of an offence is also one of its subjective constituents.

Since, however, normally, anyone committing a criminal act is doing so contrary to law, it follows that this need not be mentioned in the text of the law. Consciousness of acting unlawfully is therefore, as the Reichsgericht has repeatedly held, not an element of ' intent' unless the word ' unlawful' (rechtswidrig) actually occurs in the definition of the offence, as in section 123 (Hausfriedensbruch-trespass); section 246 (Unterschlagung-embezzlement);

section 303 (Sachbeschidigung-damage to property).

22. If in relation to a punishable act the subjective and objective elements of an offence exist, the perpetrator is guilty and liable to punishment, unless there are special reasons for exemption or immunity from punishment (justification).

23. Among the grounds of justification Self-defence (Notwehr) is of special importance (section 53), i.e., such defence measures as are necessary to ward off a ' present and unlawful' attack. The attack must be one directed by human agency and threatening the violation of protected interests, such as life and person, liberty, honour, property, etc. The attack must be ' present ', i.e., immediately threatening or continuing; it may neither have been completed in the past nor threatening at some future time. It is not necessary that the attack should be a punishable offence. The gamekeeper may therefore shoot a poacher who does not lay down his gun on request. The ' attack ' continues even after the actual act had been completed, as long

as the violation of the protected interest continues. Action taken against a thief fleeing with his booty is therefore still Notwehr. The attack must be 'unlawful ', i.e., one which the attacked person is under no obligation to suffer. Legal arrest, distraint of goods, lawful chastisement, do not therefore fall under the head of attacks against which Notwehr is permissible. Notwehr is however allowed against persons who have no capacity for...

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