According to German Criminal Code and Austrian Criminal Code , criminal liability initially requires the existence of a law threatening the act with punishment at the time of the offense (principle of nulla poena sine lege , “no punishment without law”; rule of law ).
Then the violation of this law must exist both in an objective (the actions must fulfill the so-called objective factual state ) and in a subjective (knowledge of the action as well as a form of intent for the action in accordance with the law ).
Furthermore, there must be no justifying or excusing facts. Self-defense in accordance with (2) of the German Criminal Code or (1) of the Austrian Criminal Code is justified . B. a supra-legal emergency i. S. v. German Penal Code or in Austria: excusing state of emergency according to Austrian Tax Code. The victim's consent also excludes criminal liability in certain cases (e.g. surgical intervention , injection , sports with risk of injury) ( volenti non fit iniuria ).
Penalization as a process
- Harro Otto : Basic Course in Criminal Law, General Criminal Law , 7th edition 2004, § 1 Rn. 37.