Guilt (criminal law)

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As part of the trichotomisch established dogma of German criminal law is guilt in addition to the subjective and objective characteristics of the offense and the illegality of the third condition for checking the criminal liability of perpetrators behavior.

Within the framework of a normative concept of guilt, the culpability of the perpetrator is examined and, based on this, the personal reproach of the act directed at him. The perpetrator can be punished if the person is guilty and personally accusable. In this respect, the criminal law concept of guilt is differentiated from civil law fault , in particular that of the law of unlawful acts , because there no punishment is provided for.

Concept of guilt

The German Criminal Code does not contain a legal definition of the concept of guilt.

Today the normative concept of guilt established by Reinhard Frank is prevalent , according to which guilt means the personal reproach of willful or negligent behavior. The reproach is based on the idea of ​​free will . The prerequisite for the behavior is that the perpetrator could have made a different decision. According to the theory of determinism , which, in retrospect, sees human actions as being based on inherent and environmental determinants, in the absence of human ability to freely choose between right and wrong, the principle of guilt has lost its ground. The responsibility of the discerning and healthy person is not affected by this. Therefore, the fact that science cannot prove indeterminism has no effect on civil law or on the question of (criminal) injustice. Against this background, however, whether the accusation of guilt can be based on free will as a “state necessary fiction” ( Eduard Kohlrausch ) appears very questionable and has been increasingly critically discussed in recent years. The way in which prisoners are dealt with could depend on the clarification of whether a charge of guilt can be brought against the perpetrator at all.

The psychological concept of guilt regards guilt as the perpetrator's relationship to his or her action based on the aspects of knowledge / ignorance (cognitive elements) and willing / unwilling (voluntative elements).

The doctrine of legal guilt and the discursive concept of guilt are to be understood as a special expression of relative theories of punitive purpose . The “doctrine of residual debt” accuses the offender of a lack of legal compliance, but does not see any moral or socio-ethical evaluation in the punishment. The “discursive concept of guilt”, on the other hand, tries to establish a connection between guilt and the legitimacy of the norm against which the perpetrator is violating. In a particularly democratic society, everyone is free to work towards changing norms within the framework of an understanding with the community (discursively). If a person acts in accordance with the facts, this shows their willingness to deviate from the corresponding norms. The perpetrator does not act culpably because of his will to deviate, but because the perpetrator, as the author of his norm , breaks with the understanding and against the (also) agreed path of a possible new understanding (e.g. through a democratically founded mechanism), which his will to deviate considered, contravened.

A distinction must be made between guilty of conduct and character .

Laypeople regularly confuse guilt with causality or intent .

Conditions of guilt

The guilt is indicated by the illegality of the behavior relevant to the offense. In principle, the culprit's guilt does not have to be positively determined. Rather, the lawyer examines the so-called general guilt characteristics of the criminal offense . These are the culpability and personal reproach of the act.

Culpability

The culpability results from the negative demarcation from § 19 , § 20 , § 21 StGB and § 3 JGG . It defines who is incompetent. According to this, anyone who has the ability to see the wrongdoing of the act or to act on this insight is responsible.

A special feature applies to the problem area of ​​the actio libera in causa . In the actio libera in causa, the perpetrator does not have the ability to see the injustice of his act at the time the act is carried out, but he did have this at the time of his decision to act. Nevertheless, he is not incapable of guilt, because in these cases the case law shifts the criminal action of the perpetrator to the point in time at which the decision was made, a point in time when culpability still existed. This result is dogmatically achieved through a teleological reduction of the concept of action in Section 8 of the Criminal Code. The focus is already on the culpable state when the course of events was set in motion, which later only led to the actual act relevant to the facts in the culpable state. Example: The perpetrator gets drunk because he wants to kill his neighbor but wants to go unpunished; he then kills him in a state of intoxication . The legal consequence is a punishment for intentional offense .

Personal reproach

Personal reproach is expressed in individual attitudes and behavior towards the legal system based on this. It ultimately indicates the charge of guilt ( minima non curat praetor ). Intentional guilt as a form of guilt consists in the deliberately incorrect subjective attitude towards the legal system and lies in the deliberate act itself, as far as this is not excluded by an error of permissions . According to § 15 StGB , negligence can also determine the form of guilt. In all cases, it is necessary to have a current, or at least a potential awareness of wrongdoing , and therefore to be able to understand the material illegality of the action. Prohibition or permissions errors ( § 17 StGB ) can conflict. Unless there is a reason for excuse , such as an intensive emergency excess ( § 33 StGB), or an apologetic emergency ( § 35 StGB) and, if applicable, a supra-legal excuse , the act can be personally accused.

In addition, specific characteristics of guilt can arise in the case of certain offenses. These have a mitigating or aggravating effect and relate solely to the guilt, i.e. they have a different effect than the personal reasons for exclusion or suspension. They capture particularly onerous perpetrators situations, for example, the statement of emergency ( § 157 of the Criminal Code) may draw lesser sentence by itself; Particularly reprehensible attitudes, such as “recklessness” in the case of endangering road traffic ( Section 315c (1) No. 2 of the Criminal Code), can lead to sharper penalties .

literature

  • Klaus Günther : Guilt and communicative freedom. Studies on personal attribution of criminal injustice in the democratic constitutional state , Frankfurt am Main 2004, ISBN 978-3-465-03378-3
  • Grischa Detlefsen: Limits of freedom - conditions of action - perspective of the guilt principle. Consequences of neuroscientific research for criminal law , Berlin 2006, ISBN 978-3-428-12212-7
  • Bert Götting: Statutory penalty frameworks and penalty assessment practice , ISBN 3-631-31743-3

Individual evidence

  1. ↑ Reinhard Frank : About the structure of the concept of guilt , 1907
  2. ↑ established case law, e.g. B. BGHSt 2, 194, 200
  3. ^ Duru: Gießener Renewal of Criminal Law - Reinhard Frank and the concept of guilt . In: ZJS 2012 . S. 734 ff .
  4. ↑ Kindhäuser : Criminal Law General Part, Nomos 2013, § 21

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