Offense refers to a less serious criminal offense , which is threatened with a not too high prison sentence or with a fine . When exactly one should speak of an offense is defined differently in the legal systems of the individual states.
The differentiation between criminal acts of varying severity is documented very early in legal history. Already in the Constitutio Criminalis Carolina a distinction was made between causae maiores and causae minores (serious and minor charges); this separation was decisive for the form of punishment: life, physical and honor punishments or fines and short-term imprisonment .
The German Reich Criminal Code (RStGB) of 1871 differentiated between crime , misdemeanor and transgression . It was based on the penal code of the French Empire ( Code Pénal Impérial ) of 1810, which was created under Napoleon , and its three-part division of criminal acts ( trichotomy ) into contravention , misdemeanor and crime ( contravention - délit - crime ), as well as today's French criminal law based on the French-based systems (such as in Belgium : overtreding - wanbedrijf - misdaad ). The assignment was dependent on the threat of punishment:
- Crimes: death penalty , jail or imprisonment (from 1953: confinement ) of more than five years
- Offenses: prison , imprisonment for up to five years or a fine of more than 150 marks (from 1965: 500 marks)
- Violation: imprisonment or small fine.
With the criminal law reform of 1974/75 this trichotomy was replaced by a dichotomy ( dichotomy ) in the Federal Republic of Germany : Since then, only crimes and offenses have been criminal offenses. The violations were abolished and partly converted into offenses, partly replaced by administrative offenses or decriminalized . Instead of penitentiary, prison and imprisonment, there was a single prison sentence .
Whether this dichotomy should be retained is controversial among criminal lawyers, as its practical importance is relatively small.
In some legal systems, the distinction between misdemeanor and crime does not or no longer exists. For example, in the criminal laws of Italy , Spain and the Netherlands, which were also developed on the basis of the French model, violations ( contravvenzioni , faltas or overtredingen ) still exist for minor offenses, but all other offenses are uniformly classified as "offenses" or "offenses" ( delitti , delitos or misdrijven ). Nevertheless, serious and less serious facts are also assigned to corresponding sub-categories. In most jurisdictions of the common law , there is the distinction between serious or " capitals " crimes ( felonies ) and less serious criminal offenses ( misdemeanors ), where the term "crime" ( crime ) is used in English as a generic term and systematic rather the "offense “As such.
According to the Criminal Code of the GDR from 1968, there was a dichotomy between crimes and offenses . The limit was 2 years imprisonment, but not abstractly after the threat of punishment, but after the imposition in individual cases ( ) of the GDR StGB). In addition, there was a category of misconduct ( enumeration principle ; e.g. trespassing, insulting / defamation, misconduct) in criminal law for violations of interests “where the effects of the act and the guilt of the perpetrator were insignificant” . The administrative offenses were regulated outside of criminal law (e.g. OWVO). The social courts ruled on misconduct ; about cleared up offenses and administrative offenses only if they have been handed over to the social courts by the administration of justice or those authorized to take legal action.
Definition in Germany
According to German criminal law , the concept of an offense is defined in terms of its possible legal consequences. While crime with a prison sentence of at least have one year threatened, are offenses offenses which are punishable in the minimum with a lower sentence or just fine ( para. 2 of the Criminal Code ). Statutory sharpening and mitigating of a basic fact according to the General Part or for unnamed particularly severe or light cases are not taken into account. Irrelevant or unnamed tightening or mitigating penalties are those for which the requirements for the modification are not or at least not conclusively evident from the law. The same applies to standard examples . This means that the minimum effective sentence for a crime can be less than a year and that of an offense can exceed a year. The classification can, however, change if the law creates a new offense by adding further features (named changes to penalties).
Example 1: (Simple) bodily harm according to StGB (at least a fine) is an offense, serious bodily harm according to StGB (at least 1 year imprisonment, mandatory increased punishment and therefore a separate offense) is a crime. The mitigation of sentences for less serious cases in paragraph 3 of Section 226 of the Criminal Code does not change anything - such acts remain crimes.
Example 2: Extortion StGB (minimum penalty is fine) is an offense. This does not change if a particularly serious case is assumed in accordance with paragraph 4, not even if this is based on an example of the rule in paragraph 4 sentence 2.
The criminality of the experiment will be an offense must be explicitly mentioned in the law ( , of the Criminal Code), during the trial of a crime is always punishable.
The criminal judge at the local court is responsible for offenses if the expected legal consequence does not exceed a prison sentence of two years ( GVG). If the sentence is expected to be between two and four years' imprisonment (see penal ban ), the lay judge's court of the local court is responsible ( GVG). If the range of punishment is higher or if the matter is of particular importance, the large criminal chamber of the regional court is responsible ( GVG).
In certain offenses an original jurisdiction of the results thereof deviating Oberlandesgericht ( GVG).
Depending on the offense, special criminal chambers at the regional court may also be responsible.
Definition in Austria
According to Austrian Criminal Code (classification of criminal acts), offenses are all criminal acts that are not defined as a crime (intentional act threatened with a life sentence or a prison sentence of more than three years). In contrast to the German regulation, attempting an offense is also punishable in Austria . Furthermore, the jurisdiction of the courts is regulated differently.(2) of the
Definition in Switzerland
The individual offenses that are provided for in the special part (BT) of the Swiss Criminal Code (StGB) are either crimes , offenses or transgressions (three-way division of criminal acts). Thus, the offense represents the intermediate stage between crime and violation. According to Art. 10, Paragraph 3 of the Criminal Code, offenses are acts that are punishable by imprisonment for up to three years or a fine. The decisive factor is the threat of punishment , not the punishment actually pronounced in the specific case. The attempt is usually punishable in the case of felony and misdemeanor (Art. 22 Para. 1 StGB).
Definition in Liechtenstein
According to Section 17 of the Liechtenstein Criminal Code (StGB), "crimes [...] are intentional acts that are threatened with life imprisonment or more than three years' imprisonment" and misdemeanors "[a] ll other criminal acts, unless something in ancillary criminal law provisions other is determined ".
- Original text of the imperial penal code of 1810 (Code pénal de 1810) , at koeblergerhard.de (French)
- Soorten misdrijven , at belgium.be (Dutch)
- lexetius.com: StGB synoptic
- Ordinance on Combating Administrative Offenses (OWVO) of March 22, 1984 (Journal of Laws of I No. 14 p. 173; online )
- Henning Radtke in: Munich Commentary on the Criminal Code, 4th edition 2020, §12 Rn. 14th
- Bernd Hecker in: Schönke / Schröder Criminal Code, 30th edition 2019, Rn. 10.
- Martin Heger in Lackner / Kühl, StGB, 29th edition 2018, § 12 Rn. 3.