Criminal law
An outdated criminal law doctrine is referred to as offender criminal law, which does not punish a certain act , but a certain type of offender .
Criminal offender law gained a strong influence in Germany during the Nazi era with the so-called normative offender type theory of the Kiel School , which was founded by Georg Dahm and Friedrich Schaffstein . Typical of criminal law against offenders was the connection to a certain attitude of the offender. In terms of legal policy, the arbitrary punishment was separated from a demonstrable act in the law against dangerous habitual criminals of November 24, 1933, the ordinance against pests of the people of September 5, 1939, the ordinance against violent criminals ( violent crime ordinance ) of December 5, 1939 and Section 2 of the law amending the Reich Criminal Code of September 4, 1941, with which the provisions on murder and manslaughter in the Reich Criminal Code were redrafted.
In particular in Section 211 of the RStGB (new version), the mental characteristics “low motivation”, “lust for murder”, “greed” or “treachery” were introduced as a prerequisite for murder and the phrase “murderer is ...”. The President of the People's Court, Roland Freisler, explained that this formulation would correspond to the new criminal law view, which assumes a particular type of offender of the murderer. According to § 1 of the law of September 4, 1941, “the dangerous habitual criminal” and “the morality criminal” were subject to the death penalty “when the protection of the national community or the need for just atonement so require.” “The usurer” became “particularly severe Cases punished with prison ”(Section 3 of the Act of September 4, 1941).
According to § 4 of the so-called People's Pest Ordinance, the “exploitation of the state of war” was an aggravating reason , according to which an offender was punished “in excess of the regular range of penalties with penitentiary for up to 15 years, with life in prison or with death” if “this is the healthy public feeling because of the particular reprehensibility of the offense. "
On the one hand, it is not possible to describe a type of offender in a manner that is compatible with the principle of certainty , and on the other hand, the actions of “atypical offenders” (e.g. the casual thief) must be criminally accessible. This is why criminal law has prevailed, in which the subject of the charge is the individual act and the basis of the punishment is the individual guilt ( guilt principle ). Personal characteristics of the offender can, however, play a role in determining the sentence , such as the convictions that speak from the offense or the offender's past life ( Section 46 (2) sentence 2 StGB).
The juvenile justice system has both elements of Tatstrafrechts on and the perpetrators criminal law. It is a criminal offense to the extent that its applicability requires the commission of a criminal offense ( Section 1 (1) JGG), but the determination of the legal consequences in the Youth Courts Act differs considerably from that of general criminal law. Both in the procedure and in the choice of the assessment of legal consequences, the focus is on the perpetrator's personality and the idea of upbringing ( Section 2 JGG).
literature
- Benedikt Hartl: The National Socialist criminal law . Berlin 2000, ISBN 3-934479-27-8 . (Zugl. Regensburg, Univ.-Diss. 2000. Reading sample )
- Kai Ambos : National Socialist Criminal Law. Continuity and radicalization. Nomos 2019, ISBN 978-3-8487-5631-5 . Table of contents and preface ; Review by Jean Pierre Matus, ZIS 2019, p. 320 f.
Individual evidence
- ↑ Täterstrafrecht Rechtslexikon.de, accessed on January 24, 2020.
- ↑ Susanne Hähnchen : Legal History. 4th edition. Hüthig Jehle Rehm, 2013, ISBN 978-3-8114-6305-9 , p. 386.
- ↑ RGBl. I p. 995.
- ↑ RGBl. I p. 1679.
- ↑ RGBl. I p. 2378.
- ↑ RGBl. I p. 549.
- ^ Michael Heghmanns : Criminal law for all semesters. On the doctrine of the perpetrator type. Springer, Berlin / Vienna 2009, Chapter 2, No. 48
- ↑ Monika Frommel : The importance of the offender type theory in the emergence of § 211 StGB in 1941. In: Juristenteitung . 1980, pp. 559-564.
- ↑ Anette Grünewald : The intentional homicidal offense. Mohr Siebeck, 2010, ISBN 978-3-16-150012-1 , p. 41.
- ^ Roland Hefendehl : Juvenile Criminal Law as Criminal Law of the University of Freiburg, 2010.
- ↑ On the educational concept in juvenile criminal law. Justification, history, significance today. Scientific services of the German Bundestag , elaboration from February 13, 2008.