Conciliation law

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Criminal law of conviction refers to criminal legislation that determines the criminal injustice and the severity of the penalty less on the external course of events and the violation of a certain legal interest than on the motivation of the perpetrator. A conviction or intellectual criminal law , in which the internal idea of ​​the perpetrator aimed at committing a crime is not manifested in an external act, is incompatible with the principles of criminal law.

This article or paragraph presents the situation in Germany . Help us to describe the situation in other countries.

Development of criminal law

In Germanic criminal law, the crime was understood as a "breach of peace" or "breach of law". The prerequisite for criminal liability was the " completion of damage". So there was no trial criminality . With regard to the legal consequences, a distinction was made between intentionally and unintentionally brought about the consequences of the crime. For example, the behavior of the perpetrator after the offense was also used.

The Roman lawyer Ulpian had also stated: Cogitationis poenam nemo patitur - thoughts are unpunished. Thoughts, beliefs and opinions in and of themselves cannot be criminally relevant.

The current German criminal law sees itself as criminal offense law and always links criminal liability to actions, not just to opinions, convictions or the perpetrator's personality. According to the principle of nullum crimen sine lege (no punishment without law, Art. 103 (2) GG and Section 1 StGB), what is required for criminal liability is that all of the criteria for a particular offense are met with regard to the act and the perpetrator. In addition to proving an objectively criminal act or bringing about a criminal success, this also includes the perpetrator's subjective knowledge and willingness to commit a criminal offense ( intentional commission ) or, in exceptional cases, negligent behavior ( Section 15 of the Criminal Code). Attempting to commit a crime is always punishable; attempting to commit an offense is only possible if the law expressly provides it ( Section 23 (1) of the Criminal Code). A criminal offense is attempted by anyone who, according to his / her conception of the act, immediately starts to realize the offense ( Section 22 of the Criminal Code). Mere preparatory acts, however, are unpunished . In the Basic Law , the guilt principle has also been given constitutional status, according to which the individual guilt of the perpetrator is the measure of the punishment.

In the 1960s and 1970s in particular, the task of criminal law moved away from the educational function and towards the protection of legal interests. Only that act appears to be punishable and in need of punishment that does not violate moral feelings, but rather certain legal interests such as the life, health or property of another person. But the mind of the perpetrator plays a role in the special debt features of individual facts that one coming, in fact, expressed in contrast to the facts in the wrong action and Erfolgsunwert Gesinnungsunwert intended to identify, for example, the malicious neglect in § 225 of the Criminal Code. Even with the sentencing according to § 46 Abs. 2 Satz 2 StGB, the convictions that speak from the act and the will expended in the act can affect the offender, but only if there is a connection with the act. Otherwise, it is an improper sentencing consideration and the judgment is with the revision vulnerable. According to Art. 2 of the Act on the Implementation of Recommendations of the NSU Committee of Inquiry of the German Bundestag from June 12, 2015, "especially racist, xenophobic or other inhuman" motives and goals of the perpetrator have to be taken into account since August 1, 2015.

National Socialist Criminal Law

In the time of National Socialism, however , legislation and jurisprudence largely focused on the unpopular attitude of the perpetrator and attached disproportionately harsh penalties to this. People were punished because of their political views (communists, social democrats, trade unionists, artists etc.) or their religion. After 1945, many of these judgments or the amount of the criminal sentences were referred to as conviction criminal law, so that the term got a wider meaning. The expression criminal law of convictions is therefore to be understood as a derogatory term that is used by the prevailing doctrine and jurisprudence in allusion to Nazi lawyers.

Cleansing the criminal law of attitudes

With the Control Council Act No. 1 concerning the repeal of Nazi law of September 20, 1945, various laws of a political nature and exceptional laws on which the Nazi regime was based were expressly repealed.

Laws from the time before the Bundestag met, however, continue to apply, provided they do not contradict the Basic Law ( Art. 123 (1) GG). In individual offenses of the current criminal law, elements of criminal law from the Nazi era are still present despite the legal adjustment by the major criminal law reform in the 1950s and 1960s . Exemplary is the discussion about the restructuring of the homicides reformed in 1941 , which also includes a revision of the perpetrator typology of the "murderer" or "manslayer" from this time as well as some murder features of Section 211 (2) StGB, such as the "low motives", "Lust for murder", "greed" or "treachery". In addition, characteristics of conviction can also be found in other criminal offenses, for example in the reprehensibility clause of coercion ( Section 240 (2) of the Criminal Code), in the criminal offense of the abuse of wards ( Section 225 of the Criminal Code with the characteristics "malicious" and "raw") as well as in the serious bodily harm of Section 224, Paragraph 1, No. 3 of the Criminal Code (“insidious”), the revision of which is required by an independent commission for legal policy reasons

literature

  • Freisler's spirit in Bonn's conviction criminal law. A documentation from the Committee for German Unity and the Association of Democratic Jurists in Germany. Berlin (East) 1963.
  • Jürgen Rath: Gesinnungsstrafrecht - On the criticism of the destruction of the concept of criminal injustice in the case law of the Federal Court of Justice. Criminal Law in Research and Practice, Volume 18, Hamburg 2002. ISBN 3-8300-0843-0 . Review by Hans Kudlich , HRRS 2004, pp. 177–179
  • Brigitte Kelker : On the legitimacy of attitudes in criminal law. A criminal law-legal philosophical investigation. Frankfurt am Main 2007.
    ISBN 978-3-465-03512-1

Individual evidence

  1. ↑ BGH, decision of April 6, 2017 - 3 StR 326/16 para. 37 ff.
  2. ^ Karl von Amira : Outline of Germanic law. 3rd edition, Strasbourg 1913. Section six, Crimes and Punishments , p. 228 ff.
  3. ^ Digest 48, 19, 18
  4. ↑ cf. Wilfried Küper : "Special personal characteristics" and "special guilt characteristics" . ZStW 1992, pp. 559-590
  5. ↑ Federal Law Gazette I p. 925
  6. ↑ Control Council Act No. 1 regarding the repeal of Nazi law of September 20, 1945, verassungen.de, accessed on January 29, 2020
  7. ↑ Law amending the Reich Criminal Code of September 4, 1941, RGBl. I p. 549
  8. ^ Reform of homicides Federal Ministry of Justice and Consumer Protection , link to the final report of the expert group from June 2015, accessed on January 29, 2020
  9. ↑ Establishment of an independent commission for the linguistic adjustment of the criminal law from Nazi norms, in particular of sentiments. Application to the German Bundestag, BT-Drs. 18/865 of March 19, 2014