As soon as legal interests that are particularly worthy of protection are affected by misconduct, the application of criminal law always comes into consideration. The same applies if the public interest requires the offender to be punished.
The Criminal Code (StGB) is again divided into two parts. On the one hand into the general part and then into the special part. Both parts do not get along without each other. The general part contains information on the doctrine of crime and its legal consequences, as well as regulations on the assessment of criminal offenses. An example of this is § 46 of the Criminal Code, which specifies the principles of sentencing in more detail. In sentencing, the court must consider, among other things, the motives and goals of the offender, his attitude or the manner in which the crime was committed. However, these are not the only principles.
The special part of criminal law comprises the individual acts that are subject to punishment. The dependency is particularly relevant if an offense only describes a certain range of punishment and does not specify a concrete amount. The general part then serves as a guide to the concrete level of punishment. In the general part, among other things, aspects are regulated as mentioned above, which must be taken into account when calculating the amount of the penalty. The offenses of the special part can be divided into the following categories:
- Crimes against the state and society - The legal asset affected is the democratic constitutional state.
- Crimes against persons - The legal interest concerned is the health and life of individuals. Consequently, one may not injure or kill persons.
- Crimes against property - This refers to the theft or, alternatively, the destruction or damage of property.
A paragraph of the special part of the Criminal Code is always divided into constituent elements and legal consequences. In order for a perpetrator to be punished, he must have fulfilled all objective and subjective elements of the offense. In addition, the offender must have acted causally and the act must be objectively attributable to him. The act of the perpetrator is causal if the act cannot be conceived away without the success in its concrete form ceasing to exist. The act is therefore a prerequisite for the success of the act.
This definition is also called "conditio-sine-qua-non" formula. The act is objectively attributable if the perpetrator created a legally disapproved risk, which was realized in the success of the act. The objective elements of the offense are always those which must be objectively present. As an example serves the § 212 StGB (manslaughter), with which objectively the death of another humans must be given.
The subjective elements of the crime describe, at least for example in § 212 StGB and most others, that the perpetrator must have committed the crime intentionally. More precisely, there are three levels of intent. This "dolus directus" can be in a first or second degree. In the case of the first, one speaks of "wanting" to commit the offense and in the case of the second, one speaks of "knowing" that the offense was committed. The third level is defined by the "dolus eventualis". This is the conditional intent, i.e. the conscious acceptance of a possible occurrence of success.
It is also conceivable that an offender acts negligently. The offender acts negligently if he disregards the necessary care in traffic. Thus, the offender must have had the objective possibility to foresee the avoidability of the act. In addition, the perpetrator must have acted subjectively in a manner contrary to due care according to his individual abilities and knowledge.
It therefore seems difficult in many cases to distinguish whether and when a perpetrator has acted merely negligently or with contingent intent. This is relevant above all because a criminal liability in the context of a negligent conduct can only be sanctioned if the norm from the Criminal Code also makes a negligent act punishable. This is clear from Section 15 of the Criminal Code.
Intentional and negligent actions
Only intentional actions are punishable, unless the law expressly punishes negligent actions.
The following crimes are examples because of their frequency of commission:
- Bodily injury according to § 223 StGB
- Dangerous bodily injury according to § 224 StGB
- Offences against the BtMG
- Theft according to § 242 StGB
- Fraud according to § 263 StGB
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