Official maxim

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The criminal procedural official maxim (also the official principle ) is a procedural maxim that states that the prosecution is generally incumbent on the state or the state authorities, i.e. the public prosecutor , and not on the injured party. The opposite is the disposition maxim .

history

In early states, the legal system was not nationalized to the same extent as it is today. The prosecution of legal violations was not differentiated into civil and criminal law. Instead, in both cases (with the exception of the popular lawsuit under Roman law), only the injured party was authorized to assert his claims. This so-called private criminal law differentiated according to today's between civil and criminal law only with regard to the legal consequences: While civil law claims only entitle to compensation for the damage, the injured party could demand an additional fine for criminal claims.

This so-called accusation procedure of private criminal law was abolished when the state extended its monopoly of force to the protection of private rights and initiated the prosecution of crimes ex officio .

In recent times there have been an increasing number of elements that can be described as “dismantling of statehood” in criminal proceedings and thus historically represent a return to private criminal law. These are, on the one hand, the perpetrator-victim settlement , in which the state can waive its claim to punishment in the event of an agreement between the perpetrator and the victim or in the event of damage compensation by the perpetrator, and, on the other hand, restorative justice procedures, which seek to resolve the conflict without recourse to the state Aiming criminal claim.

Content of the official maxim

In criminal proceedings, it is for the state organs charged to raise ( accusatorial ). The will of those affected is irrelevant. The law enforcement authorities are also required to investigate against the declared will of the victim of a crime. This follows from the principle of legality . However, this maxim is broken at various points. For some criminal offenses, especially those of a minor nature or with a highly personal impact, the injured party must file a criminal complaint before prosecution or he may himself take the path of a (criminal) private lawsuit.

The official maxim is a process maxim . It is not to be confused with the inquisition maxim (principle of investigation, official investigation), according to which a court or an authority must determine the facts of their own accord and is not limited to the submissions or requests for evidence of the parties.

In civil and administrative proceedings, on the other hand, the opposite disposition maxim predominates .

See also

Individual evidence

  1. ↑ Volker Krey , German Criminal Procedure Law, Vol. 1, 2006, ISBN 9783170184084 , Rn. 385.
  2. ↑ Uwe Wesel , Geschichte des Rechts, 3rd ed. 2006, passim, in particular marginal no. 135.
  3. ↑ On this Uwe Wesel , Geschichte des Rechts, 3rd ed. 2006, passim ,. in particular Rn. 349.