Norm theory

The theory of norms sees the essence of crime in the violation of the state's right to obedience to norms. The claim to obedience is a special form of the Do ut des : The state protects the individual against violation of his personal rights through its legal system. In return, the individual has the duty to support the state legal system by adhering to its norms.

The theory of norms was founded by Karl Binding and has found its final description in his work The norms and their transgression (1922). It was not considered a theory for Binding itself. For him, the proof and the structure of the German criminal law on the basis of the norms was a logical necessity.

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The norms as the basis of criminal law

The concept of the norm

In his remarks on the character of the penal laws, Binding defines as follows: “Now, however, the correct knowledge of the legal clauses that the criminal 'violates' is prejudicial for the most important doctrines of criminal law, especially for the doctrine of offenses and the guilty side. I call those legal propositions norms. ” (Binding, Norms I p. 7, lines 1–6) At another point, Binding puts it another way:“ [...] this is the binding guideline for action legal prohibition or requirement as such [...]. We find this commandment essentially by converting the first part of the criminal law into an order [...]. It is this legal order that I call the norm. ”(Binding, Norms I p. 45, lines 1–10)

Norms in this sense are not, as many assume, an indefinite set of laws, which is characterized, for example, by the concept of the concrete and abstract control of norms of the Federal Constitutional Court , but the set of all do's and don'ts, by which the citizens are guided got to.

Proof of the existence of the norms

The standards are verified in three different ways. Binding tries to show norms in the law directly, but also uses indirect evidence from the criminal laws and the needs of the legislature to complete the evidence.

The indirect evidence from the criminal laws

The imperative as the actual content of the norm can be justified either in the legal consequence of the criminal law, in the first part of the criminal law with more or less clear reference to the legal consequences, or in the first part of the criminal law alone. This results in three command variants, which Binding describes as follows: “Either the command is: 'You shouldn't kill!' or: 'You shall not kill under penalty of punishment!' or 'You should take the punishment if you have killed!' "(Binding, Norms I p. 37, lines 7-10)

The derivation of an imperative from the legal consequence is ruled out for Binding, since this does not prohibit the crime itself. Rather, the criminal has the duty to do everything for his own prosecution. However, this is not positive at any other point in the law.

The imperative of the penal laws to justify the facts in connection with the legal consequence is also rejected. In this way, following a similar argumentation as before, the crime itself is not forbidden, but simply "its future authors the deliberate advice gives it out of consideration for the state or for their own convenience". (Binding, Norms I p. 39, lines 4-6) The murderer, for example, is compelled by that imperative not to refrain from the act out of consideration for the lives of his fellow human beings, but out of consideration for the state obliged to punish. (see Binding, Norms I p. 41, lines 6-13)

In this case, the punishment would become binding as the reason for the prohibition. The threat of punishment would therefore be "the only suitable Gorgon head" (Binding, Norms I p. 41, line 27), which would keep people from the crime. However, since the criminal regularly hopes not to be discovered - which belies the quality of the threat of punishment as a deterrent - one would come to the strange conclusion that the delinquent contravened the prohibition but did not act illegally. Furthermore, because the binding imperative is based on both parts of the criminal law, no guilt is possible without awareness of the legal consequences. (Nowadays this meant that the offender's intent would have to extend to the legal consequence of the offense.)

The first part of the penal laws as the basis of the imperative remains for Binding as the only logical derivation. If a criminal violates this prohibition, he "does exactly and completely [...] what that prohibition wants [...]." (Binding, Norms I p. 42, lines 25-27) Also have Such a command does not have the disadvantage that it is issued out of consideration for punishment, for example, but that it prohibits the act described.

Those commandments and prohibitions presented themselves as binding orders , the observance of which presupposes the recognition of state authority. A comparison is made here with military orders, which are to be obeyed without the threat of punishment, if the person who obeys them recognizes the authority of the person in charge.

These norms from the first part of the penal laws are the "binding guideline for action which the criminal transgresses" (Binding, Norms I p. 45, lines 1–2), which is valid without any reference to possible legal consequences. The requirement of this guideline is to be obtained by converting the first part of the penal laws into an order. That command, in turn, is what binding calls the norm.

The indirect evidence from the need

Since the legislature has to name obligations to protect certain legal interests that citizens should adhere to, their form and content emerge as the most expedient means in the standard. More than one command or prohibition is not necessary to tell the subject what to do or what not to do. The norm thus arises from the need to protect legal interests as a necessary means.

The direct evidence from the written law

Binding only provides this evidence in order to counter some of the arguments of his critics and to convince those who only adhere to the written law. The type of evidence is also structured according to the individual arguments. These should also be grouped here according to the division of bindings.

Some of his critics claim that the norms are not legal clauses because some of them are of a different nature, such as ethical norms. Binding counteracts them with the simple statement that the norms are the basis of the criminal laws. Hence, the penal laws made them legal norms. Others in turn deny the lex imperfecta (legal norm without legal consequences) the legal nature. You support this assertion, among other things, with the fact that the norms only prohibit fraudulent acts, but not negligent acts. Binding repeatedly states that it is the norms that the criminal violates and thus "the criminal law [...] is the accessory that cannot stand without reference to the norm, not the other way around." (Binding, Norms I p. 58, lines 10-12)
Other critics affirm the existence of the norms, but deny their independence. The norm is part of the criminal law, but only of importance in relation to it. Binding establishes a fundamental acceptance of a doctrine of norms among those critics, but refutes their argument by stating that the norms also stand alone in the law, i.e. that norms are independent even without penal laws.
After all, some do not recognize any particular legal clauses in the standards, but want to recognize standards in all laws. Binding, however, sees it as an "act of rape" (Binding, Norms I p. 61, line 9) compared to positive law. In his opinion, the resulting "one-sidedness and monotony" (Binding, Norms I p. 61, lines 10-11) is extremely worrying. He considers this approach to be purely natural law, "according to which the law is only there to restrict natural freedom" (Binding, Norms I p. 60, footnote 16)

In order to search for the existence of the norms as lex imperfecta in the laws, Binding lists various examples that show that the lex imperfecta does exist as an independent legal clause. He names a few examples from the constitution of the German Empire (RV), which commands the Kaiser to behave in a certain way without threatening legal consequences. (see RV Art. 11, 2 (declaration of war by the emperor without the consent of the Bundesrat), RV Art. 12, 13, 25, 26 (on dealing with the Reichstag), RV Art. 10 (The Federal Councilor).) He also points out to other passages of imperial legislation where leges imperfectae are found or where they only seem to be. However, it remains important to show that the legislature “does not doubt for a moment that it establishes real legal obligations.” (Binding, Norms I p. 66, lines 8–9)

From the terminology of the legal sources one can conclude that the norms are a prerequisite for the criminal law. In many places, words such as “regulation, arrangement, prohibition, etc.” (Binding, Norms I pp. 67–68) are used. This suggests that the existence of the norms is taken for granted. That terminology is an exact expression of the view of the laws. The penal laws would always semantically convey that non-compliance with a previous order was the justification for the penal law. Criminal laws that list the violation of orders, prohibitions that can be lifted by authorization in individual cases and criminal laws in which “unauthorized persons” are mentioned explicitly permit the conclusion that the offense is a violation of a prohibition or prohibition outside of them Bid is considered. Other laws that do not recognize such a violation, but are structured in the same way, led to the conclusion "that all criminal laws recognize the offense as a violation of a norm outside of them." (Binding, Norms I p. 70, lines 26-27 )

Binding sees this conclusion confirmed by the fact that the state sometimes keeps the norms of certain ethnic groups clearer. As an example, he cites the articles of war in which the soldier has his duties clearly defined. He could not easily and unambiguously deduce his duties from the criminal laws. However, the emphasis here is clearly on the norm and not so much on the legal consequence. He sees further confirmation of his thesis in the fact that the penalties and their gradation are often not very precise and are usually rounded upwards for purposes of deterrence.

The character of the norms

The norm as an affirmative legal proposition.

Since the norms, as objectively legal legal clauses, regulate the emergence, transformation and decline of subjective rights , Binding calls them affirmative legal clauses. The norm always establishes rights and obligations at the same time. The rights have to call on the violence the obligation - a "right to obedience or subjection " (Binding, standards I page 97, line 7), which is statuiert the duty of obedience to establish that the legislature state of its citizens ( Subjects) required.

The norms are inevitably part of public law. Attempts to see them as limited to criminal law would contradict the numerous locations of those in international, constitutional or administrative law. Therefore there are no penal norms.

If norms are delegated by the state to others, it is still a matter of the will of the authorities to be followed, but not of the delegated private will.

The originator of the norm also determines the group of those bound by norms. In this way, strangers could undoubtedly be bound to the norm. Whether they recognize the duty of obedience is irrelevant. From the perspective of the standard giver, they are bound by the standard.

From the nature of the matter it follows that obedience in relation to the norm is nothing more than the "subordination of one's own will to another recognized as authoritative" (Binding, Norms I p. 99, lines 4-5) that obedience presupposes the conscious ability to act and thus does not bind those who are unable to do so, for example the mentally ill or children.

Norm and non-norm.

Binding vehemently rejects the view of some colleagues who, on the grounds of general freedom under natural law, see in every law a restriction of this and the justification of a norm. The word “ordinance”, which is used by the advocates of this theory as a justification for the restrictive character of all laws, exclusively represents the “solemn form of the declaration of legal will” (Binding, Norms I p. 104, lines 13-14) The second mistake of those who want to see a norm in every legal sentence is the erroneous view that only legal sentences justifying obligations exist. The existence of only justifying law refutes this, however.

The different manifestations of the norm

In order to accurately represent the various manifestations of the standard, Binding categorizes it. Two main groups of norms can be identified: commandments and prohibitions. Prohibitions are intended to prevent people from taking a certain action, i.e. making them non-acting in the manner described. Commandments, on the other hand, asked people, when they acted, as is their nature, to do so in a certain way. The prohibition and the command are therefore in fact opposed. However, this does not mean that a prohibition does not contain a secondary requirement “not to act like that”.

The prohibitions

Bans are there to "keep certain changes in the legal world away". (Binding, Norms I p. 111, lines 14–15) Binding divides these prohibitions as follows:

Injury bans: Binding calls bans on injuries all norms that forbid the achievement of a certain degree of success. He emphasizes that success must always be the result of a cause and therefore, in truth, it is not success itself that is forbidden, but the cause that leads to certain success. For example, the norm “You should not kill” actually means “You should not create the cause of a death, of this or that change.” (Binding, Norms I p. 115, lines 1–3) In this respect, the prohibited act is the creation of all conditions which work towards success or remove those which prevent it. The conditions only become a cause, however, when the person can no longer prevent success by changing other conditions. At the same time, however, the norm not only commands the failure to create a cause that leads to success, it also expresses a secondary duty to remove causal conditions that one has created oneself.

Endangerment prohibitions : The endangerment prohibitions are subsidiary to the violation prohibitions. These are bans that “carry the risk of becoming the cause of a certain injurious success” (Binding, Norms I p. 119, lines 3-5). The only question is how to determine when there is a risk given the infinite number of conditions, the equilibrium of which prevents the cause from being brought about. In order to have a delimitation criterion at all, however, the limit must be set where previously favorable conditions for non-entry have turned into unfavorable ones. The threat is therefore the "strengthening of the conditions that lead to success in such a way that we must fear that they will outgrow the equilibrium with the holding-back conditions" (Binding, Norms I p. 121, lines 1-3). However, this view could lead to the prohibition of endangerment being viewed as incomplete prohibition of infringement of the causation. Thus the actual existence of the hazard norms can be denied. If you do this, you fail to realize that even the greatest possible risk of killing has not yet exceeded the limit of successful killing. If the prohibition of endangerment is made a punishable offense in the penal code, it is logically necessary to make the prohibition of injury a criminal offense. However, the intent is different for both, so that not every hazard represents an attempted injury at the same time.

Prohibitions per se : Binding calls actions which, regardless of whether they actually represent a danger or not, are prohibited by the nature of the matter as “bans par excellence”. Such a punishment is a pure disobedience punishment, the action of which normally has no effect on the legal world, but whose implementation is undesirable because it can disrupt the legal order.

The commandments

The commandments are also subject to the three-way division of the prohibitions:

Commandments of effect or causation command to bring about a certain success.

Promotion requirements require certain actions that can bring about beneficial results.

After all, commandments simply command actions that normally lead to beneficial success, whether they do it specifically or not.

Unconditional and conditional norm

Furthermore, the standards are divided into conditional and unconditional standards . The much larger number are the unconditional norms with their one-part form “You should not kill”. On the other hand, however, there are standards that link certain requirements to the standard and thus have a two-part structure. (An example construction is: “If this or that is fulfilled, you should!”) Such norms should be called conditional norms .

General and special norm

The distinction between general and special standards relates to the addressee of the standard. If a norm applies to everyone, if it is general, if it only applies to a certain group of people (e.g. community service providers, civil servants, etc.), if it is specific.

Exceptions to the norm

Some claim that the norms have existed unchanged for ages, that a violation of the norms was and is always wrong. However, Binding can refute this very aptly. If this were the case, the norms would have survived the ages unchanged and would have always been viewed as injustice. However, this contradicts the fact that in the course of time there have always been periods in which some norms did not apply and norms existed that we no longer know today. Even the apparently perpetual norm of the prohibition of killing knows exceptions. (As an example, he cites the right to kill the adulterer and the adulteress in Roman law) Even in moments of self-defense or incapacity for guilt, a violation of the norm is not necessarily wrong. In such cases, it is "now required, now allowed, now not forbidden, now forbidden but not punishable" (Binding, Norms I p. 131, lines 21-23).

A norm is then always of a conditional nature, since there must always be certain conditions under which the norm applies. From this point of view, the unconditional norm actually only has the property of regularity, because the act is not prohibited per se.

The relationship between norms and criminal law

The essence of the penal laws

The real meaning of the penal laws

Criminal laws are always structured in two parts. At the beginning there is the offense under which the perpetrator's actions are subsumed. If the subsumption succeeds, the legal consequence - the second part of the criminal law - comes into force. In this respect, the criminal law is not the law that the perpetrator violates, but only that which orders his conviction. “The law which the criminal violates precedes the [criminal law] conceptually and regularly but not necessarily in time.” (Binding, Norms I p. 4, lines 15-18) According to Binding, it is the norm that the Criminal breaking by his name.

The second part of the penal laws contains the legal order in the form that punishment should take place. To whom is this imperative directed? Here, Binding distinguishes between three possible addressees: the judge or all state officials delegated to the "criminal field" (Binding, Norms I p. 9, line 7), the delinquent and the legislative state itself.

The criminal as the addressee of the imperative: If the imperative of the second part of the criminal law were directed against the criminal, he would have to take his punishment upon himself. This would mean that the guilty party who evaded his punishment would make himself liable to prosecution again and would go the way of an “eternally rejuvenating crime” (Binding, Norms I p. 14, lines 1–2). If an act were not made a criminal offense and the state wanted to punish him anyway, the delinquent would have to oppose the punishment. If he were to allow himself to be locked up anyway, he would have made himself a criminal offense. The absurdity of this notion shows that the criminal cannot be the addressee of that imperative.
The criminal judges or execution officers as addressees of the imperative: If they were the addressees of the imperative of the criminal law, then the criminal law would be completely non-binding, since its validity would then depend on the existence of those officials. The officials did not punish themselves, but on the one hand objectively interpreted the law and recognized criminal law. On the other hand, they carry out the judicially ordered sentence without further investigation. This group is also ruled out as an addressee of the imperative.
The legislative state as the addressee of the imperative: If the state were obligated by the criminal law alone (this would mean that the criminal law is viewed as a voluntary obligation of the state to punish), then the state itself would come into question as the sole violator of this criminal obligation. However, this view is also to be regarded as incorrect, since, as the example of the monarchy shows, in which the monarch is not obliged to punish himself, but is not allowed to punish himself at all.

So the penal laws do not contain any imperative directed at anyone. Therefore, Binding sees the phrase “there should be punishment” as a solemn pronunciation of the declaration of legal will, comparable to the old “ita ius esto”.

Criminal law is nothing more than a justifying or affirmative (Binding prefers the term affirmative legal clause.) Legal clause that regulates "the emergence, content and end of the subjective criminal law relationship between the person entitled to punishments and the criminal." (Binding, Norms I p. 20, Z. 16-19) The criminal law is therefore not a legal clause that a perpetrator can violate or a norm for those entitled to punishments.

Norms and Criminal Laws in Legal History

At many points in legal history there is clear evidence of the existence of the norms. For example in the Decalogue, Roman law and Germanic law. Binding tries to show that these old legal clauses have a significant advantage over today's criminal laws, which was also important for understanding the motivation of Binding for his norm theory. For him, these old legal propositions characterize “[...] clarity about what should be forbidden, and this clarity is just as necessary for the formation of law in the present as it is for past times. A technically excellent penal code cannot possibly succeed unless the legislature has formulated its norms sharply beforehand, and the German penal law clearly shows in many places that this did not happen. ”(Binding, Norms I p. 152, Z . 2 - p. 153, line 2).

The Decalogue is one of the oldest forms of legal clauses. It is noticeable that these correspond to the requirements of Binding's norm. Accordingly, he sees them as an ingenious act of legislation. “Only ingenious drive could establish this granite pedestal for the whole of Israelite and Christian ethics.” (Binding, Norms I p. 138, lines 6-8) There is some evidence in the Pentateuch about the threat of punishment if the norm is violated . However, the reason for the direct lack of the threat of punishment is not secured. Perhaps the sentence arose later. At that time it was probably firmly anchored in the people's conscience because of the reverence for God. The Law of Twelve Tables and the Pandects also contain legal clauses of various kinds, including the pure form of the norm. The Lex Barbarum also seemed to know the form of the norm, but at the same time provided it with an executive criminal law.

It was precisely the influence of Christianity on the development of our culture that made the norms disappear from the written law, since the provisions of the Decalogue were the basis for the development of the penal laws.

Federal and state law

Two special cases: blanket laws and exceptions to the norm

A very topical problem at the time of the Weimar Republic is that of the blanket laws . Although it no longer has any legal significance today, the legal structure is interesting enough to be mentioned. In the imperial constitution, the empire was granted sole penal legislation in the form of competing legislation. If the empire passed a law, particular norms had to take a back seat. Normally in such a constellation the Reich also enacted the criminal law at the same time as the norm.

In exceptional cases, however, a threat of punishment that applied to the entire Reich was based on particular norms. This created inconsistencies in the area of ancillary criminal law in Germany. (As an example, Binding cites § 366 Reichs-StGB: "Anyone who violates the police ordinances issued to maintain security [...] is punished with a fine.") However, this construction is in keeping with the spirit of Art No. 13 contrary to the Imperial Constitution. He also makes it clear that "the Reichsstrafgesetz [requires] the Reichsnorm in principle." (Binding, Norms I p. 165, lines 7-8)

Exceptions to the Reichsnorm provided by the Reich legislature, which would be enacted by particular laws, represent a similar construction . These cases are to be assessed in the same way as the cases of the Blankett Acts.

Retroactive effect of criminal laws

Binding believes that the sharp distinction between norms and criminal law can also provide an unambiguous answer to another controversial question in jurisprudence: the question of the retroactive effect of criminal laws . If, after the perpetrator has committed the offense, the penal code is changed or if it is no longer applicable, it is questionable how the perpetrator should be punished. Those who do not recognize the existence of the norms as norms independent of criminal law would argue in such a case that the perpetrator could only disregard the law in force at the time of the act. The delinquent triggers the legal consequence stipulated in the law through his actions. The prerequisite for this, however, is that one recognizes the penal law as an imperative with the following content: "You should refrain from doing this and that act with the punishments I threatened" (Binding, Norms I p. 169, line 2 - p. 170, line. 2) The more severe punishment of the new law would not apply to him. A more favorable, milder penalty should then be determined out of equity.

If you separate norm and criminal law, the picture is completely different. The decisive factor would then in any case be the sentence at the time of the judgment. The criminal laws are based on a norm that the state has forbidden to violate. A change in the sentencing does not change the prohibition of the act by the norm. However, it would be an exception if the norm were changed at the same time as the new criminal law. However, in this case, as a logical consequence, the criminal was not able to break the new norm at the time of the crime. The question of the retroactive effect of criminal laws does not therefore arise here.

A right of the lawbreaker to a punishment of any kind could not be constructed in any way, since no right to a specific punishment would arise from the criminal law to be assessed. The submissiveness of the subject results solely from the norm, the violation of which results in the right to punishment.

Even the view that the offender should not be given the harsher punishment out of equity is based on the erroneous belief that the offender was only counting on the punishment laid down in criminal law at the time of his act. The erroneous belief is based on the fact that the following is ignored: "The criminal world does not expect to be punished, intends to cheat the state out of the punishment and flees the consideration of which punitive equivalent corresponds to their act." (Binding, Norms I p. 177, line 32 - p. 178, line 1) In addition, it is nevertheless cheap if the perpetrator always receives the least possible punishment. However, this procedure is a “pacifying” (Binding, Norms I p. 178, line 7) with the perpetrator. Rather, it should behave like this: "Serious as the passion attacking the law is also fighting it, mild at the same time, but also relentless in what is recognized as necessary!" (Binding, Norms I p. 178, lines 8-10)

The possible constellations of retroactive effects can now be limited to the following cases:

The act used to be illegal but not punished and is now punishable. : A distinction must be made here as to whether one recognizes the principle of nulla poena sine lege praevia or not. If one does this, then one cannot punish, since then all acts that are not yet statute-barred would also have to be criminalized. However, if you make an exception to the nulla-poena principle at this point - and Binding takes this position - the legislature must, however, expressly declare that it wants to criminalize previous acts.
The act used to be punishable, only the sentence has now changed. : In this case, the judge would logically have to apply the new sentence.
The act was previously punishable, but is now unpunished. : No punishment should be imposed here, because the old criminal law is as little part of the current criminal law as the criminal law of a foreign state.

Exploitation of norms in criminal law

Since not all norms are punished for their violation, it is necessary to examine the various possibilities of using norms in criminal law.

Change or suppression of the norm

If the norm on which a criminal law is based is changed or repealed, at first glance it would seem impossible that the criminal law would not also lapse or that a substantial change would have to be made. However, there is an undeniable similarity in every violation of a norm, namely the violation of the duty of obedience, which the norm demands from its form. In these cases, the threat of punishment would not be based on the specific act, but solely on the breach of the duty of obedience.

One norm - one criminal law

The simplest way to base a criminal law on a norm is to summarize the totality of fraudulent violations into one offense and to provide a legal consequence. However, this would occur in the rarest of cases and only in the case of comparatively insignificant offenses. (Binding brings the example of Section 172 StGB (adultery), which no longer exists today.)

One norm - several criminal laws

Some violations of norms are used in various qualifications and privileges or alternatives and subsidiarity in the criminal laws. The entirety of these violations is called a generic offense. For this there are many examples for the norm “You should not kill!”. Its various divisions, which are still valid today, into negligent homicide (§ 222 StGB), murder (§ 211 StGB) and manslaughter (§ 212 StGB) or into the offenses that are no longer encountered today such as B. killing by deliberately violating the rules of duel (§ 207 Reichs-StGB) are mentioned.

The classification of the norm “You should not violate the physical integrity of another!” Is also very diverse. This includes, among other things, willful and negligent bodily harm (§§ 223, 229 StGB), serious bodily harm (§ 226 StGB) and bodily harm resulting in death (§ 227 StGB).

In some cases, these offenses would only have stipulated a violation of the norm by a certain act, on the other hand, their punished acts would only differ in the intensity of the act.

Ultimately, this subdivision has only one purpose: "The legislature thereby designates the norm violations which deserve or do not deserve punishment, and it fixes the levels of punishability on which the crimes are based." 28) However, all of these offenses have one thing in common. They represent all violations of a norm - they are culpable acts contrary to the norm. The only requirement is that the actions really all - as Binding calls them - have non-standard features and do not fall under an exception to the standard.

One norm - alternative criminal laws

Finally, a standard can also produce different penal laws that are alternatively to one another, which is the case, for example, if the legislature records the effect of the standard and thus divides it into different facts. (Examples include arson and arson on insured buildings with intent to defraud.)

Another case of alternative would arise if the generic offense was unpunished, but different qualifications were made a criminal offense.

Several norms - one criminal law

The legislature has often combined various violations of norms, which it threatens with the same punishment, to form an alternative offense. "Anyone who [...] buys or sells an election vote is [...] punished." (Binding, Norms I p. 206, lines 6–8) This is an example of a contraction of various independent norm violations. Binding calls such facts "mixed facts".

Several non-conformities - one crime

Another alternative to the utilization of norms in criminal law is that of “compound crimes” (Binding, Norms I p. 209, line 26). A special characteristic of this group is that the individual norm violations that make up the offense remain unpunished when viewed in isolation . Only in combination are the norm violations punishable. Fraudulent bankruptcy (section 209 of the bankruptcy code) is such a crime. Viewed in isolation, bankruptcy is not a criminal offense. Failure to keep trading books alone does not become a crime. Together, however, they make up the facts.

The other possibility of the combination is the composition of a criminal offense from several criminal offenses. The example given here is the murder of the emperor or another sovereign (§§ 80, 81 StGB), which is also punished as high treason. In this case, the individually criminal acts of high treason and murder would be combined to form a further offense.

Limitations on criminal liability

A last group of criminal laws are those whose criminal liability is based only on a qualification of the violation of the norm. Offenses whose criminal liability is only triggered by the fact that they are carried out in a habitual or commercial manner should serve as an example.

We should also mention the case in which the criminality of one act triggers the impunity of another. (Example: § 82 Reichs-StGB contains the norm "You shouldn't prepare high treason". § 83 only punishes if the offense of § 82 is not fulfilled.)

Finally, the small group of offenses that contain conditions that do not correspond to any violation of the norms (double punitive threats) is mentioned. Here, for example, ancillary conditions under civil law occur as a prerequisite for the offense. (For example, official documents.)

expenditure

Binding, Karl: The norms and their violation. An investigation into the lawful act and types of offense. In 4 volumes. Volume 1. Reprint of the 4th edition, Leipzig 1922, Aalen 1991

Web links

"The norms and their violation" in full text at text-o-res .