Criminal law

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The criminal law , as a detective (punitive) rather denotes comprises legal system of a country those legal standards , prohibited by the specific behaviors and a penalty as legal consequences are linked. The primary goal of criminal law is the protection of certain legal interests such as life , health and property of people, the security and integrity of the state and elementary values ​​of community life. Possible punishments, which are not practiced in all countries, include fines , imprisonment , corporal punishment and, as the most serious form, the death penalty .

In most countries, criminal law is codified in the form of a separate penal code and, if necessary, other subsidiary laws . The essential part of criminal law consists of the legal clauses that define criminal acts and their characteristics (so-called criminal offenses ) as well as the type and scope of the associated penal measures. Traditionally, criminal law also includes criminal procedure law , which defines the institutions responsible for enforcing criminal law and how they work.

With regard to the permissible penalties, the assessment of the purpose of the punishment , the type and scope of the underlying legal bases and the classification of criminal law in the legal system, there are in some cases considerable differences between the legal systems of individual countries that are the subject of comparative jurisprudence .

Country reports

Civil Law

Common law

International and transnational criminal law

Punitive purpose theories

When the Haupttopoi the theory of criminal justice of valid beyond the borders of jurisdictions across retaliation , (general and special) prevention, protection of the public and rehabilitation . The latter has taken a back seat in the United States in the recent past; The most important justification of the war on crime is therefore primarily the protection of the general public from criminals. An empirically observable consequence of this is increased prison rates and death sentences .

In the continental systems too, however, the meaning of the various theories oscillates. In the German system introduced in 1933, for example, punishments in the true sense - they are measured against the guilt of the perpetrator - can be separated from measures of reform and protection - for example linked to the idea of ​​rehabilitation.

Structure of the offense

The analysis of the structure and components of a criminal offense are the core content of criminal law. The models of the legal systems of common law and the continental, especially German, are by no means completely incongruent, but they show clear differences. The English criminal law in particular sticks to the traditional structure of an offense . This is as follows:

  1. actus reus ,
  2. mens rea .

On the other hand, there is a second system from Germany that is used worldwide:

German Spanish Italian
Factuality tipicidad tipicità
illegality antijuricidad antigiuridicità
fault culpabilidad colpevolezza

German criminal law science and its general doctrine of criminal law are among the most influential in the world. The leading German textbooks are often translated into Spanish, Portuguese, Chinese, Japanese and Korean. German criminal law has been widely received in Spain, Latin America, Japan, South Korea, Taiwan as well as in Poland, Greece and Turkey:

The model proposed in the US Model Penal Code approximates the German model, but nevertheless retains its characteristic coloring. Actus reus and mens rea are not sufficient even under common law . For a conviction, the offense may ultimately not have any defense , i.e. a primarily procedural defense option for the accused. In England in particular one is critical of a division into justifying and excusing defenses , while in the United States it is gaining in importance for murder . The distinction, however, is less ontological than pragmatic, even in the USA.

The French code pénal does not contain any information on the structure of the criminal liability test; This gap has been filled by various approaches in legal theory. The earliest approach differentiated solely on the basis of the criteria of a criminal offense and a criminal offender. The criterion of criminal offenders included, for example, sanity , guilt and self-defense (légitime défense). From the middle of the 20th century, approaches were established that for the first time structured the crime as such. This classic doctrine classique describes a three-part structure:

  1. legal element ( élément légal )
  2. material element ( élément matériel )
  3. subjective element (élément subjectif also élément psychologique, intellectuel or élément moral ).

The perpetrator's personal responsibility was not part of the structure of the offense. Later some attempts arose to assign personal responsibility, such as criminal responsibility or sanity, to the subjective element; on the other hand, the existence of a fourth element, the élément injuste, was partly considered, which should include self-defense.

China cannot be assigned to either of the two major systems: At the beginning of the 20th century, the long Chinese legal tradition of its own was broken in favor of the reception of German and Japanese law . The classic German structure of the criminal liability test was adopted in terms of facts, illegality and guilt. In 1949, the Communist Party rejected all previously applicable law and previous doctrine. It was replaced by a division shaped by the law of the Soviet Union , which was built on the basis of Marxism-Leninism . The four prerequisites for criminal liability are therefore:

  1. Protected object
  2. certain objective circumstances
  3. subject
  4. subjective facts (intent and negligence)

In teaching, this structure has not remained uncritical, especially in recent times; In particular, it is pointed out that elements of exclusion from punishment fit better into the German three-part structure. Nevertheless, the four-part structure represents the applicable paradigm.

With regard to the object of the deed, jurisprudence differentiates between the concrete object of the commission of the act (object of action or attack, 对象, duixiang ) and the abstract object of protection (客体, keti ). The protected object is an independent feature in the structure of the facts; the object of action, on the other hand, is one of the objective circumstances. The traditional view describes as an object of protection, the "socialist social relationships protected by criminal law, violated by the criminal act" (社会主义 社会 关系, shehui zhuyi shehui guanxi )

If all four conditions are met, an act that is harmful to society and therefore a criminal offense can be assumed. Exceptions to this can be understood as subcases of a lack of harmfulness to society. The German division into illegality and guilt is not known; the cases covered by this in the German legal circle are dealt with under the term “reason for the exclusion of criminal liability” (paichu fanzui de shiyou) .

Individual offenses

Systematization

The concept of legal interest (bien jurídico, bene giuridico) is of paramount importance for the classification of criminal offenses in the German model of criminal offenses . The classification of the individual offenses is based on the legal interests violated by the offense. The figure is based more on legal theoretical considerations than on constitutional law.

In view of its central position, it may come as a surprise that there has so far been no agreement on the exact definition of a legal asset as to how it should be defined: as indispensable and therefore valuable functional units, as a legally protected interest, as an interest in need of criminal protection or as a valuable condition. Accordingly, the concept has been criticized as difficult to grasp or circular: “The legal interest has become a true proteus , which is immediately transformed into something else in the hands of those who believe it is held.” It is therefore unclear whether the lack of a legal interest makes a criminal offense unconstitutional. Overall, the legal interest therefore has its main role in the interpretation of the criminal offenses. The provisions and evaluations of the constitution play a similar role in US law.

Common law legal systems lack a counterpart to legal interests . Figures like individual or public interest or harm or evil can best be understood as equivalents, even if they by far lack systematic meaning. Constitutional law therefore provides the core of the US justification for individual crimes.

Comparative legal presentations of individual crimes

Economic analysis

The attempt to use economic theory to justify criminal law and to explain criminal behavior can look back on a long tradition: In the age of classical economics, Cesare Beccaria , William Paley and Jeremy Bentham particularly stand out. Recently, Gary Becker in particular has attempted an economic analysis of criminal law.

Economic theories are often based on the need to optimize criminal law on the basis of utilitarian principles and to construct criminal offenses as effectively as possible. In the economic model, offenders respond to positive and negative incentives. The aim of optimization is therefore the careful use of public and private resources to avoid crime . Criminal offenders are generally assumed to make use-maximizing efforts in the selection of criminal and non-punishable acts to achieve their financial or non-financial goals. The underlying punitive purpose theory is deterrence.

Criminal Policy and Criminology

The legal-political dimension of criminal law is often referred to as criminal policy. In a narrower sense, this is understood to mean "the strategies of crime prevention and criminal investigation [...]". It manifests itself in "criminal law and the code of criminal procedure." In this narrow understanding, criminal policy means "reform of criminal law."

If the perspective of the economic analysis of criminal law already includes some non-legal factors, the focus of criminal policy and criminology in the broader sense is even bigger: It goes far beyond criminal law and includes all means and areas of law that are actually used to prevent Serve crime. Franz von Liszt's bon mot is famous that the best criminal policy is a good social policy .

Criminal law as a political tool to fight crime experienced a renaissance at the beginning of the 21st century. The increasing importance of internal security has put decriminalization behind the tightening of criminal law. Scientifically, this is sometimes heavily criticized.

literature

Comparative law

criminology

  • Alexander Elster [founder], Rudolf Sieverts (Ed.): Concise dictionary of criminology . 2nd Edition. 5 volumes. de Gruyter, Berlin, 1966–1998.
  • Sanford H. Kadish [Founder], Joshua Dressler (Ed.): Encyclopedia of Crime and Justice . 2nd Edition. 4 volumes. Collier Macmillan, London / New York 2002, ISBN 0-02-865320-3 .

Legal philosophy

Economic analysis of criminal law

  • Robert Cooter, Thomas Ulen: Law & Economics . 8th edition. Addison-Wesley, Boston 2008, ISBN 0-321-52290-7 , 10. An Economic Theory of Crime And Punishment 7. Topics in the Economics of Crime And Punishment.
  • Isaac Ehrlich: Crime and Punishment . In: Steven Durlauf, Lawrence E. Blume (Eds.): The new Palgrave dictionary of economics . tape 12 . Palgrave Macmillan UK, London 2019, ISBN 978-1-349-95121-5 .
  • David D. Friedman : Law's Order . Princeton University Press, Princeton / Oxford, ISBN 978-0-691-09009-2 , 15 - Criminal Law.

Web links

Individual evidence

  1. ↑ a b c d e Markus Dubber : Comparative Criminal Law . In: Mathias Reimann , Reinhard Zimmermann (eds.): Oxford Handbook of Comparative Law . Oxford University Press, Oxford 2006, ISBN 978-0-19-929606-4 , pp. 1310 , doi : 10.1093 / oxfordhb / 9780199296064.001.0001 ( utoronto.ca [PDF]).
  2. ↑ a b c d e f g Markus Dubber : Comparative Criminal Law . In: Mathias Reimann , Reinhard Zimmermann (eds.): Oxford Handbook of Comparative Law . Oxford University Press, Oxford 2006, ISBN 978-0-19-929606-4 , pp. 1310 , doi : 10.1093 / oxfordhb / 9780199296064.001.0001 ( utoronto.ca [PDF]).
  3. ^ Markus Dirk Dubber: Comparative Criminal Law . In: Mathias Reimann, Reinhard Zimmermann (eds.): Oxford Handbook of Comparative Law . Oxford University Press, Oxford 2008, pp. 1296-1299 .
  4. ^ Smith / Hogan: Criminal Law
  5. ↑ Juliette Lelieur, Peggy Pfützner, Sabine Volz: Concept and systematization of the criminal act - France . In: Ulrich Sieber, Karin Cornils (Ed.): National criminal law in a comparative legal representation . II. General Part, Volume 2. Duncker & Humblot, Berlin 2008.
  6. ↑ Mingxuan Gao: Principle of Criminal Law . Volume 1. China Renmin University Press, Beijing 1993, pp. 480-485
  7. ↑ Yang Zhao, Thomas Richter: Concept and systematization of the criminal offense - China . In: Ulrich Sieber, Karin Cornils (Ed.): National criminal law in a comparative legal representation . II. General Part, Volume 2. Duncker & Humblot, Berlin 2008.
  8. ↑ a b c d e f g Markus Dubber : Comparative Criminal Law . In: Mathias Reimann , Reinhard Zimmermann (eds.): Oxford Handbook of Comparative Law . Oxford University Press, Oxford 2006, ISBN 978-0-19-929606-4 , pp. 1310 , doi : 10.1093 / oxfordhb / 9780199296064.001.0001 ( utoronto.ca [PDF]).
  9. ↑ Rudolphi, FS Honig, 1970, p. 151 (163 f.)
  10. ^ Maurach / Zipf AT / 1 19/8.
  11. ^ NK / Hassemer / Neumann Before § 1 marginal number 144.
  12. ↑ Roxin JuS 1966, 377 (381).
  13. ↑ Welzel ZStW 58 (1939), 491 (509).
  14. ↑ a b c d e f Isaac Ehrlich : Crime and Punishment . In: Steven Durlauf, Lawrence E. Blume (Eds.): The new Palgrave dictionary of economics . tape 12 . Palgrave Macmillan UK, London 2019, ISBN 978-1-349-95121-5 .
  15. ^ A b Thomas Feltes : criminal policy . In: Hans-Jürgen Lange, Matthias Gasch (Hrsg.): Dictionary for internal security . tape 2 . VS Verlag für Sozialwissenschaften, Wiesbaden 2006, ISBN 978-3-8100-3610-0 , p. 160-165 .
  16. ↑ a b c d e f Hans-Jürgen Lange : Internal security . In: Hans-Jürgen Lange, Matthias Gasch (Hrsg.): Dictionary for internal security . tape 2 . VS Verlag für Sozialwissenschaften, Wiesbaden 2006, ISBN 978-3-8100-3610-0 , p. 123 (127) .