Criminal law (Germany)

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In German law, criminal law is a field of law that makes certain human actions (“ deviant behavior ”) subject to state punishment . The purpose of criminal law has long been disputed; The discussion about this fluctuates mainly between suppressive or retaliatory (repressive) and preventive, i.e. preventive, approaches with regard to the effect of criminal norms. However, there is agreement that criminal law should prevent people from violating the legal interests of others or the general public, which are protected by a criminal law.

Criminal law is a part of public law that has become independent in the course of history in terms of its method and the legal norms assigned to it. For unlawful and culpable acts ( injustice ), criminal law provides for sometimes severe sanctions up to and including imprisonment . If the guilt is absent, the court must dispense with the penalty, but it can impose a measure .

In principle, criminal law includes all legal norms that regulate the prerequisites (substantive criminal law) and the procedure (formal criminal law, criminal procedural law) according to which a penalty or a measure of reform and security is to be imposed and implemented ( law of enforcement ).

Acts committed abroad are only subject to German criminal law in exceptional cases (protection principle, universal law principle ). Crimes against international law have been regulated in the International Criminal Code since 2002 .

The same rules apply to juvenile and adolescent offenders with regard to criminal liability. The juvenile criminal law under the Juvenile Court Act provides for different sanctions than for adults for educational reasons. Both take into account the particularities of deviant behavior at this age and the responsibility of the state community for young people. Special rules also apply to soldiers ; the Military Penal Act applies to them.

The law of administrative offenses belongs to criminal law in the broader sense, because it follows the methods of criminal law and is similar in the procedure. Anyone who has committed an administrative offense has not yet made themselves liable to prosecution. Administrative offenses are usually punished with fines , which can be set in a flat-rate catalog. The transfer of criminal offenses into administrative offense law often serves to decriminalize mass crimes . Abolitionism , which demands the abolition of criminal law and imprisonment or - more generally - state punishment in general, and instead of these , uses alternative sanctions , goes beyond this , in particular social regulation models.

history

Anselm von Feuerbach , creator of the penal code for the Kingdom of Bavaria from 1813

The criminal law in force in Germany today goes back largely to the 19th century. Although considered embarrassing Halsgerichtsordnung Charles V since 1532 as a take subsidiary law in the Holy Roman Empire , a far greater influence on the development of modern criminal law, however, had Feuerbach's Criminal Code for the Kingdom of Bavaria from 1813. Much influenced by this was begun in 1826, the Criminal Code for the Prussian States , which came into force in 1851 and was the basis for the Criminal Code of the North German Confederation in 1869. The latter was expanded with a few changes in 1871 to form the Imperial Criminal Code , which, with changes, continues to apply today as the Criminal Code .

International Dimensions of Criminal Law

Law of application of penalties

German criminal law generally only applies to domestic offenses, Section 3 of the Criminal Code, thus following the so-called territorial principle. The nationality of the perpetrator or the victim does not matter. The principle of territoriality is extended by the so-called flag principle in § 3 StGB to offenses committed on board of ships and aircraft flying the German flag.

Section 9 of the Criminal Code defines the scene of the crime to the effect that every place where the perpetrator acted should have acted or where the success of the crime occurred or should have occurred is the scene of the crime (ubiquity principle). The crime scene of participation is also a crime scene. The success of the offense can also be the occurrence of an objective condition of criminal liability or a dangerous outcome. The ubiquity principle is particularly important in the case of internet crimes.

Section 5 of the Criminal Code extends the scope of German criminal law for certain offenses to include offenses committed abroad if they relate to domestic legal interests, for example state security offenses (protection principle). Section 6 of the Criminal Codegoes even further,according to what is known as the principle of global law , which makes certain acts abroad a criminal offense, for example serious human trafficking or counterfeiting.

Finally, according to Section 7 of the Criminal Code, German criminal law applies to all offenses committed abroad against a German (passive personality principle, paragraph 1) or by a German (active personality principle, paragraph 2) if the offense is also punishable at the crime scene stands. The scope of German criminal law is also extended to certain international public officials through special laws for the implementation of international treaties.

International criminal law and EU criminal law

Germany is a signatory to the Rome Statute and has fulfilled its obligations under this international criminal law treaty by creating the International Criminal Code . According to this, the offenses of international criminal law such as genocide, crimes against humanity and war crimes can be brought before German courts as well as before the International Criminal Court , the latter only if Germany is unable to prosecute itself (so-called complementarity) .

The Criminal Code also implements a number of other international treaties in the field of criminal law. After all, the criminal law of the European Union has had a significant influence on German criminal law through EU directives and framework resolutions, for example in the case of crimes relating to corruption and human trafficking. Against this background, German criminal law must be interpreted in accordance with European law and in accordance with the European Convention on Human Rights .

Substantive criminal law

Legal sources

The core of substantive criminal law in Germany is regulated in the Criminal Code (StGB).
In addition, a large number of other laws contain their own criminal offenses; this subsidiary criminal law includes:

general part

In the general part of the Criminal Code (Sections 1 to 79b StGB) those rules are standardized that apply to all offenses (e.g. grounds for justification, attempt, statute of limitations and forms of participation). In terms of legislation, the StGB is structured using the brackets technique . The general part of the Criminal Code usually also applies to the offenses of ancillary criminal law, unless the respective ancillary laws expressly contain provisions that deviate from this.

overview

A central concept of criminal law is the act. The term is misleading insofar as under certain conditions failure to do so, namely failure to do so, can be punishable. Which actions can be criminally relevant at all and how this should be checked in detail is controversial (between the so-called doctrines of action ). In any case, the action (doing or not doing) must be based on the will and not just a reflex, for example. Successful crimes (e.g. manslaughter, bodily harm) also require that this action or failure to do so has caused a consequence, the so-called success. This success must also be objectively attributable , i.e. that is, it must not have been completely improbable or unpredictable. Furthermore, the act must in principle have been committed intentionally . For some criminal offenses, further subjective characteristics are also required. For some acts, negligent action is sufficient . If these prerequisites are met, the offense (in the narrower sense) is fulfilled according to the usual doctrines ( factuality ).

But only acts that are unlawful constitute injustice and can be punished. Any act that constitutes a criminal offense and for which there is no justification is usually unlawful . A reason for justification could be self-defense , for example .

The unlawful offender must also act culpably (personally accusable) in order to make himself liable to prosecution.

Only if these three conditions - factuality, illegality, guilt - are fulfilled can a penalty be imposed as a legal consequence . If someone has committed a crime that is not justified but has not acted culpably , for example because he is mentally ill , no penalty can be imposed. Instead, the only legal consequences that can be pronounced are measures of improvement and security .

Objective and purpose of criminal law

Criminal law is linked to the violation of protected legal interests. Because of the constitutional principle of proportionality , the legislative use of criminal law should always only be the ultima ratio (last resort). This means that the violation of legal interests should only be threatened with punishment if sanctions under civil and administrative law are no longer sufficient to bring about effective protection of legal interests. This is why criminal law is always fragmentary: it does not consistently cover every morally reprehensible behavior or even the entirety of social and societal entanglements, but merely criminalizes individual types of behavior that the legislature considers to be particularly socially harmful.

According to the prevailing view today, the main goal of criminal law is not to bring about justice in a legal society, but to maintain legal peace . It also has a preventive and repressive effect on perpetrators and society. In order to avoid reducing the victim to a mere object of criminal law, procedural law provides for participation as a secondary plaintiff in highly personal legal interests , e.g. B. in the case of bodily harm and rape . The offender-victim compensation is known as a legal consequence .

Aim and purpose of punishment

There have been various approaches to the meaning or purpose of punishment since ancient times. The current criminal law in Germany combines the three different aspects of the meaning and purpose of punishment, which are derived from the so-called criminal theories . This is also referred to as the theory of unification in legal literature.

The aspect of special prevention focuses on the perpetrator: The perpetrator should be rehabilitated (positive special prevention) and deterred from committing further crimes (negative special prevention). The aspect of general prevention has the effects on society in mind: Citizens should be deterred from committing criminal offenses (negative general prevention) and, in general, society's trust in the stability and enforceability of the legal system should be strengthened (positive general prevention). But also the absolute criminal theories with their justification about ideas of justice and retribution , atonement or compensation of guilt still have an impact on the current criminal law: The guilt of the perpetrator still plays a decisive role in criminal law ( guilt principle ), especially as the basis for sentencing.

In the last few decades, the "locking up" of dangerous perpetrators to increase the security of the population has become increasingly popular as a punitive purpose. The idea of "keeping public danger criminals" (cf.. Also advancing preventive detention ). However, this contradicts the current legal situation ( § 2 StVollzG ) and a ruling by the Federal Constitutional Court on the so-called distance requirement between execution of sentences and preventive detention. Under the act, it is the goal of imprisonment to move the prisoners to a righteous lifestyle (enforcement destination). The protection of the general public is at best to be regarded as a subordinate implementation objective; it is also disputed whether this is actually an enforcement goal. It is no coincidence that this subject is politically very controversial.

Principle: No punishment without a law

The substantive criminal law is characterized by the principle “No punishment without law ” ( nulla poena sine lege ); The German Criminal Code begins with him in Section 1 of the Criminal Code and he enjoys constitutional status (cf. in the identical Article 103, Paragraph 2 of the Basic Law ). This principle contains the following individual requirements, two of which are aimed at the legislature and two at the legal practitioner.

Principles that the legislature must observe:

  • Law of certainty - nulla poena sine lege certa : The wording of the law must be sufficiently precise. However, the legislature is not prevented from using terms that require an assessment by the user of the law (e.g. "high damage", "reprehensible"), if the actual circumstances cannot be understood differently and the meaning of the respective term corresponds to the generally recognized Methods of interpretation can be determined.
  • Non-retroactivity - nulla poena sine lege praevia : The criminal liability provision must have been valid as a law at the time of the offense. Retroactive criminal liability is not possible. According to the prevailing view, this does not refer to the prerequisites for criminal prosecution, but exclusively to substantive criminal law. The limitation period for murder in the Federal Republic of Germany could be extended several times up to the current regulation (no limitation period). An exception to this - exclusively in favor of the perpetrator - is the principle of the so-called lex mitior , according to which the new version applies if the law is revised, provided it is more lenient.

Principles that users of the law (criminal judges, criminal courts) must observe:

  • Prohibition of analogies - nulla poena sine lege stricta : In substantive criminal law, the use of analogies to the detriment of the accused is prohibited. The delimitation of interpretation and analogy determines the limit of the wording of the respective standard. In this respect, this principle supplements the requirement of certainty: If the legislature has to formulate precisely, the law user must not circumvent this by exceeding the wording. However, an analogous application of regulations in favor of the offender is permissible.
  • Prohibition of customary law - nulla poena sine lege scripta : The judges are prevented from using customary law to justify punishment. Since the core area of ​​criminal law has long been codified, the prohibition of customary law has in fact no longer any scope. Justification by common law is not prohibited. Consent or the justifying conflict of duties may serve as an example . Overall, the prohibition of analogy and the prohibition of customary law prohibits judges from creating facts and legal consequences through legal training.

Principle of guilt

Criminal law doctrines

Deliberate commission crimes

Factual theory
Objective fact
causality
Objective attribution
Subjective fact

Under the heading of subjective facts, intent and special subjective characteristics are examined according to the action theory represented today .

The intent must be related to the characteristics of the objective fact. In addition, in the case of certain offenses (e.g. fraud or theft ), special subjective characteristics must be present (such as the intention to gain enrichment in the case of fraud or the intention of appropriation in the case of theft or embezzlement).

illegality
Civil emergency
General justifying emergency
Self-defense

Self-defense is also a justification and is regulated in Section 32 of the Criminal Code. In terms of legal policy, it is rooted in two different aspects: the principle of protection under individual law and the principle of legal probation under social law.

Right of arrest and self-help
Consent, consent, right of upbringing
fault
Culpability
Special characteristics of guilt
Excuses
Fallacy

The perpetrator may succumb to various types of error in the act. On the one hand, he can be wrong about the circumstances of the incident, i. H. about the characteristics of the statutory offense.

Example 1: T takes someone else's umbrella into a restaurant, believing it is his own.

On the other hand, he can also be wrong about the fact that his behavior is prohibited under criminal law, i. H. he does not know the prohibition norm.

Example 2: T cannot imagine that the unauthorized use of a car is really a criminal offense and drives around a little in his neighbor's Ferrari while his neighbor was briefly inattentive.

The error about the circumstances of the offense is called a factual error and is regulated in § 16 : There is no intent, the offender can only be punished for a negligence offense if necessary. In example 1, the perpetrator remains unpunished as there is no such thing as negligent theft. The error about the prohibition norm is called a (direct) prohibition error and is legally standardized in § 17 . Accordingly, the intent remains unaffected; however, the sentence can be reduced in accordance with Section 49 of the Criminal Code if the perpetrator could not avoid the error.

In addition to these legally regulated error cases, there are also error constellations that the law does not expressly regulate. These include the permit error and the permit error .

Example 3 (permission misconduct): T thinks O wanted to kill him. In order to defend himself against this supposed attack on his life, he shoots O himself and kills him.
Example 4 (permission error ): T believes that euthanasia is a recognized justification and therefore kills O.

In the case of an error in the status of a permit, anyone who imagines circumstances which, if they actually exist, would meet the requirements of a legally recognized justification. Its treatment is lively controversial in the legal literature. The so-called strict guilt theory , with the result that in the above example T would have made himself punishable not only for negligent homicide according to § 222, but for murder or manslaughter according to §§ 211, 212, 17 sentence 2 StGB. According to §§ 17 S. 2, 49 StGB, however, the penalty would have to be reduced if T could have avoided the error, for example by getting legal advice on the admissibility of euthanasia. The opposite position to this is the so-called limited guilt theory prevailing in jurisprudence and literature . It applies § 16 StGB to this constellation of errors - with very different justifications in individual cases: The error omits intent, the perpetrator can only be punished for negligence (in example 3, for negligent homicide according to § 222 StGB). This is justified on the basis of evaluation criteria: the perpetrator is "basically lawful", he is "a bowl not a villain". The result of the strict guilt theory should therefore be corrected. This is handled by the different sub-groups of this view at different levels of criminal liability.

Personal grounds for exclusion

Involvement (perpetration and participation)

In the case of intentional criminal offenses, German criminal law differentiates between different forms of participation : perpetration (direct offender , indirect offender , accomplice ) and participation ( inciting , aiding and abetting ). In addition, the criminal law doctrine knows the law is not described Besides perpetrators . In the case of negligence, on the other hand, there is only the perpetrator.

In contrast to this, Austrian criminal law (as well as that of Denmark and Italy) only knows the concept of the unitary offender; So there is no distinction between someone who has committed a criminal offense and someone who has only helped him (a comparable regulation applies in German administrative offense law ).

Try and resign

negligence

Fail

Unity and majority of acts

special part

The special part of criminal law standardizes the specific behavior that is criminalized. These so-called offenses or criminal offenses can be found in the second part of the Criminal Code (Sections 80 ff. StGB) as well as in individual norms in other, topic-specific laws (the so-called subsidiary criminal law). The individual criminal offenses of the special section can be divided into “offenses against personal and community values” and “offenses against assets”.

Crimes against personal and community values

Homicides
suspension
Offenses against the unborn life
Physical injury offenses
Coercion, deprivation of liberty, stalking
Taking hostages, kidnapping minors
Offenses of honor
Trespassing
Presumption of office, resistance to state power
Offenses against the administration of justice
Statement offenses
Document offenses
Arson
Road traffic offenses
Full intoxication and failure to provide assistance
Official offenses

Offenses against assets

Property damage and computer crimes
Theft and embezzlement
Robbery and robbery-like offenses
Usage and consumption presumption
Return of pledges and prevention of enforcement
Fraud and Computer Fraud
Extortion and predatory extortion
Infidelity and infidelity-like offenses
Favoring, receiving stolen goods and money laundering

Criminal procedure law (formal criminal law)

Legal sources

The core of formal criminal law in Germany is regulated in the following laws:

Regulations on formal criminal law can also be found in the Criminal Code (e.g. § § 77 ff. StGB), in the Introductory Act to the Courts Constitution Act (e.g. § 23 ff. EGGVG), in the Basic Law (e.g. Art. 103 f . GG) and in the European Convention on Human Rights (in particular Art. 6 ERMK).

Cognitive process

In dubio pro reo, election confirmation

No double punishment

Article 103, Paragraph 3 of the Basic Law: Not twice in the same matter

Legal consequences

The aim and purpose of the penalty or of criminal law play an important role in the selection of the legal consequences and, in particular, their amount ( sentencing , see Section 46 StGB ). The criminal law of Germany places the offense in the foreground with regard to criminal liability (whether), for the legal consequence (how), in addition to other aspects, the perpetrator's personality and the effects on society must also be taken into account (see § 46 and § 62 StGB).

Germany's criminal law basically knows two types of legal consequences ( duality ): the penalties dependent on a guilt and the guilt- independent measures . However, there are some legal consequences under criminal law that cannot be clearly assigned to these two categories (for example, rendering unusable , forfeiture and confiscation ). It therefore makes sense to deal with the further legal consequences (secondary penalties and secondary consequences) together.

The third lane sometimes refers to offender-victim reconciliation ( Section 46a of the Criminal Code) and assistance in investigating or preventing serious crimes ( Section 46b of the Criminal Code).

Punish

The penalties are divided into main penalties and secondary penalties. The main penalties, namely imprisonment and fines, are clearly punitive.

Imprisonment

The content of the custodial sentence consists in restricting the prisoner's freedom of movement, since it is precisely this need that people consider to be particularly important and a restriction is accordingly perceived as a serious evil.

Fine

The point of the fine is the compulsory renunciation of consumption. This is based on the assumption that consumption has a high priority in today's society and that the offender perceives doing without it as an infliction of evil. In order to ensure a just punitive effect for all income groups, the system of daily rates is used in Germany. A daily rate usually corresponds to the average net income of the perpetrator on one day and is set from (at least) one (for low-income earners) to thirty thousand euros (for wealthy people) ( Section 40 of the Criminal Code). Maintenance obligations are taken into account. This takes into account the various income levels of the perpetrators.

If the fine is not enforceable, a prison sentence will be imposed in the amount of the number of daily rates ( substitute prison sentence §43 StGB ). It is possible to avert the substitute custodial sentence by performing so-called "free work" (Art. 293 EG StGB). There is no entitlement to this. The conversion of the fine into the custodial sentence is a fundamental problem of the fine: It is an increase in penalties that cannot be justified under criminal law, which also results in a considerable burden on the prison system (more than 4,000 occupied prison places in Germany).

Another problem with fines is that (according to prevailing opinion) the payment of a fine by third parties is permissible, which means that the fine may not have an effect.

Sentencing
Penalty limits

The penalty range is stretched between a lower limit (minimum) and an upper limit (maximum). It is set out in the law in the abstract for every criminal offense (robbery, theft, perjury, etc.). The minimum and maximum are either directly in the respective paragraph of the special section or they result from the general rules of the general section of the Criminal Code. For example, for (normal) robbery in Section 249 (1) a “ prison sentence of not less than one year” is threatened (minimum level for robbery). According to the general rule in Section 38 of the Criminal Code, the prison sentence for a (normal) robbery may not exceed 15 years (maximum), since it is a non-lifelong, i.e. an "early" prison sentence.

Sentencing in the narrower sense

However, such a broad range of punishments does not mean that the criminal court can freely choose between the (theoretical) maximum and minimum levels. The selection of the correct punishment takes place in a further process, the so-called sentencing in § 46 StGB. The above-described aspects of the meaning and purpose of the punishment are important here, as can also be seen from the wording of Section 46 of the Criminal Code.

According to the law, the guilt of the offender is the “basis for the assessment of the penalty” ( Section 46 (1) sentence 1 of the Criminal Code). In this context, “guilt” is not only to be understood as the third stage of the examination of criminal liability (guilty or not guilty), but as the scope of the entire accusable injustice that has been brought about by the act (guilty of sentencing).

Exactly what role this guilt of the perpetrator plays in determining the specific punishment is controversial. According to the prevailing opinion, the guilt of the perpetrator as a framework provides both the lower and the upper limit of the possible punishment (so-called guilt framework theory or leeway theory ). There are many opposing positions in criminal law literature; for example, according to another view, the principle of guilt should limit the penalty only upwards (and not downwards).

Measures of improvement and security

Regardless of the individual guilt of the perpetrator, the measures of reform and protection can be ordered. An overview of the possible measures can be found in Section 61 of the Criminal Code. Are possible after the custodial measures hospitalization in a psychiatric hospital or in a rehabilitation center (so-called forensic ) or accommodation in the backup storage , as well as the non-custodial measures guide supervision , withdrawing the license or prohibition . Measures (in contrast to punishment) are not limited by the principle of guilt , but serve only prevention. According to Section 62 of the Criminal Code, however, you will find a limit, at least in the principle of proportionality.

Ancillary penalties and side effects

See Ancillary Penalties and Consequences

Driving ban

The driving ban can be found in Section 44 of the Criminal Code in the section “Additional penalty”.

Statute of limitations

In criminal law (including the law of administrative offenses) a distinction is made between the statute of limitations for prosecution and the statute of limitations for enforcement .

Enforcement proceedings

literature

The Munich Commentary on the Criminal Code.

history

Textbooks on criminal law, general part

Textbooks on criminal law special section

  • Rudolf Rengier: Criminal Law. Special part I. Property offenses. 15th edition, CH Beck, Munich 2013, ISBN 978-3-406-64651-5 .
  • Rudolf Rengier: Criminal Law. Special Part II. Offenses against the person and the general public. 14th edition, CH Beck, Munich 2013, ISBN 978-3-406-64650-8 .
  • Urs Kindhäuser: Criminal Law. Special part I. Crimes against personal rights, the state and society. 5th edition, Nomos, Baden-Baden 2011, ISBN 978-3-8329-6466-5 .
  • Urs Kindhäuser: Criminal Law. Special Part II. Offenses against property rights. 7th edition, Nomos, Baden-Baden 2012, ISBN 978-3-8329-7677-4 .
  • Olaf Hohmann, Günther Sander : criminal law. Special part I. Property offenses. 3rd edition, CH Beck, Munich 2010, ISBN 978-3-406-59494-6 .
  • Olaf Hohmann, Günther Sander: criminal law. Special Part II. Offenses against the person and the general public. 3rd edition, CH Beck, Munich 2010, ISBN 978-3-406-59495-3 .

Comments

Magazines

Web links

Commons : Strafrecht (Germany)  - Collection of images, videos and audio files

Individual evidence

  1. ^ Wolfgang Joecks : StGB Einl. C - historical development. In: Munich Commentary on the Criminal Code . 2nd Edition. Vol. 1. Munich 2011, Introduction, Rn. 77; Thomas Vormbaum : Introduction to the modern history of criminal law. 2nd Edition. Berlin, Heidelberg 2011, p. 78 ff.
  2. ↑ Lackner / Kühl, 27th edition, § 3 Rn. 1.
  3. ↑ Lackner / Kühl, 27th edition, § 9 Rn. 1.
  4. ↑ Lackner / Kühl, 27th edition, § 9 Rn. 2.
  5. ↑ Lackner / Kühl, 27th edition, § 3 Rn. 5.
  6. ↑ Lackner / Kühl, 27th edition, § 5 Rn. 1, 3.
  7. ↑ Lackner / Kühl, 27th edition, § 6 Rn. 1.
  8. ↑ Lackner / Kühl, 27th ed., Anh. V.
  9. ↑ a b Lackner / Kühl, 27th edition, before § 1 marginal no. 18th
  10. ↑ a b c Bernd-Dieter Meier , Licht ins Dunkel: Die richterliche Strafzumessung, JuS 2005, pp. 769-773 (770).
  11. ↑ See e.g. B. http://www.spiegel.de/thema/sicherheitungsverwahrung/
  12. ^ Platform: StGB § 32 . In: Schönke / Schröder (ed.): StGB . 29th edition. 2014, para. 1.
  13. ↑ a b Heuchemer: StGB § 17 . In: von Heintschel-Heinegg (Hrsg.): BeckOK StGB . November 10, 2014, para. 34.
  14. ↑ Karl Lackner : Preliminary remark to §§ 25–31 . In: Lackner, Kühl (ed.): StGB . 28th edition. 2014, para. 1.
  15. ↑ a b Karl Lackner in Lackner / Kühl, StGB, 28th edition 2014, preliminary remarks on the 3rd section. Legal consequences of the act (before §§ 44 ff.), Rn. 1.
  16. ↑ Bernd von Heintschel-Heinegg in: Beck'scher Online-Comment StGB, Hrsg .: von Heintschel-Heinegg (BeckOK StGB), as of November 10, 2014, Edition: 25, § 38 Rn 1.
  17. ↑ Karl Lackner in: Lackner / Kühl, StGB, 28th edition 2014, § 46 Rn. 23 “the gradable total injustice caused”.
  18. ↑ Bernd von Heintschel-Heinegg in: Beck'scher Online-Comment StGB Hrsg .: von Heintschel-Heinegg (BeckOK StGB), as of November 10, 2014 Edition: 25, § 46 Rn. 2 "the degree of reproach in realizing the wrongful act".
  19. ↑ Bernd von Heintschel-Heinegg in: Beck'scher Online Comment StGB, publisher: von Heintschel-Heinegg (BeckOK StGB), as of November 10, 2014, § 46 Rn. 3-5.1.
  20. ↑ BGH , judgment of November 10, 1954, Az. 5 StR 476/54, NJW 1955, 190–191 (191) [= BGHSt 7, 28, 32].
  21. ↑ BGH , judgment of August 4, 1965, Az. 2 StR 282/65, NJW 1965, 2016–2017 (2017) [= BGHSt 20, 264, 266 ff.].
  22. ↑ BGH , decision of September 13, 1976, Az. 3 StR 313/76, NJW 1976, 2355 (2355) [= BGHSt 27, 2, 4 f.].
  23. ↑ See overview of the opposing positions of the guilt framework theory in: Karl Lackner in: Lackner / Kühl, StGB, 28th edition 2014, § 46 Rn. 25a.
  24. ↑ Bernd-Dieter Meier , Licht ins Dunkel: Die richterliche Strafzumessung, JuS 2005, pp. 769-773 (769-770).
  25. ^ Karl Lackner in: Lackner / Kühl, StGB, 28th edition 2014, § 61 marginal number. 1.