Criminal Law

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Law in Germany is divided into the two major legal areas of private law and public law. Private law has the task of regulating the individual legal relationships between citizens. This includes, among other things, contractual problems, family law problems such as marriage law or inheritance law, but also labor law. Likewise, tortious liability in the case of violation of legal rights can also be an issue. Public law, on the other hand, regulates the relationship between holders of public power (sovereign power), such as the state, and individual subjects of private law, i.e. the citizens of a country. 

Thus, in the area of private law, the parties to the dispute meet on an equal footing, while in the area of public law there is a relationship of superiority or subordination. Within the framework of the modified subject theory, a distinction is made between public and private law according to whether a given legal norm exclusively entitles or obligates a holder of sovereign power. If this is the case, we are dealing with public law.

Criminal law as a part of public law

Criminal law as a component of public law

Criminal law, which is also called criminal penal law, designates an area of German law and officially belongs to public law. The codes that regulate the individual criminal elements and process requirements are the Criminal Code (StGB) and the Code of Criminal Procedure (StPO). Thus, criminal law is about a criminal claim by the state (sovereign power) against an alleged offender. 

Accordingly, certain acts are punishable under the Criminal Code (arranged according to various sections). These can include bodily harm, theft, fraud, manslaughter and murder. Since this is a punishment of the individual by the state, state and citizen do not meet on equal terms and the applicable norms entitle the sovereign power to punish. A classic form of public law.

The aim of this punishment is an educational effect of the offender through the so-called "special prevention". Likewise, the punishment has a deterrent effect on the general population. This is referred to as "general prevention". An expiation to the committed act is the repression of the offender, which is also a consequence of the punishment of the offender by the state.

Special prevention
"The attempt to prevent future crimes by a delinquent by taking certain actions."

General Prevention
"A general deterrent or protective measure designed to prevent or reduce the frequency and severity of crimes against the general population."

The punishment of the offender himself is carried out through judicial criminal proceedings, which usually ends with a penalty order or a verdict. However, special regulations still apply in the area of juvenile criminal law. Criminal law thus serves specifically to protect particularly important legal interests and to punish the offender in the event of a violation of legal interests. The protection of these legal interests is intended to preserve legal peace and maintain the common good. Examples of particularly important legal interests are life and physical integrity.

Example: You are on your way to the nearby supermarket and suddenly you are grabbed from behind. The perpetrator hits you indiscriminately and steals your purse. You suffer a laceration to your face.

The action of the perpetrator is personally damaging to oneself. One hurts oneself and is stolen from. From another point of view, society as a whole cannot accept or tolerate the behavior of the perpetrator. The nationwide peaceful coexistence only works if one adheres to the societal guidelines and punishes just above mentioned acts. For the example, the perpetrator could have been guilty of bodily harm according to § 223 StGB, theft according to § 242 StGB or even robbery according to § 249 StGB.

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The State's Monopoly on the Use of Force in Criminal Law

The state's monopoly on the use of force

Vigilante justice within the Federal Republic of Germany is prohibited. A monopoly on the use of force is the right of the state alone to take action against individual citizens and to punish them. This means that only the state may imprison, detain or, in absolutely exceptional cases, injure a person through operations. This could be done by the police authorities. The purpose of this monopoly is to prevent people from retaliating consistently and, in case of doubt, hurting or fighting themselves. This would have the disadvantageous result that the peace of law would be disturbed in the long term.

The substantive criminal law

Substantive law

Criminal law, as part of public law, can again be divided into substantive and formal criminal law. The substantive criminal law concerns those norms which are made punishable by the StGB. These are the common criminal offenses. For a criminal offense, there must always be at least four conditions. These would be, among other things, the legally prohibited act, the written possible penalty, the absence of justification of the offender, which would eliminate a penalty and the culpable action of the offender. An offender would not act culpably if he can present excusable reasons for his act. 

Thus, substantive criminal law answers the question of whether or not the offender has committed a criminal offense at all. Substantive law also includes the norms of administrative offenses. However, these are not criminal offenses, but merely administrative offenses. These are also unlawful, but they are only to be considered as a non-remarkable violation of the law. For example, listening to loud music after 10 p.m. or speeding violations. The legal consequences are usually only fines, but not imprisonment.

The Criminal Code

StGB

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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The bodily injury

§ 223 StGB

Bodily injury is an offense punishable under the Criminal Code in accordance with Section 223 of the Criminal Code. In this offense, the offender interferes with the physical integrity of a person. Thus it must have come to a physical abuse or however a health damage. This offense is classified in the 17th section of the Criminal Code. The act thus belongs to the criminal offenses that are directed against persons. 

Physical abuse is present if there is nasty, inappropriate treatment and the physical well-being or physical integrity has been impaired to a more than insignificant degree. An impairment of health is present if a pathological condition is caused or increased. This condition is to be regarded as a pathological condition.

Assault
A person who physically abuses another person or harms another person's health shall be punished by imprisonment for not more than five years or a fine.

Also to be considered are the dangerous bodily injury according to § 224 StGB, the serious bodily injury pursuant to § 226 StGB or also the negligent bodily injury according to § 229 StGB. These are either separate criminal offenses or qualifications of the basic offense from § 223 StGB. The difference is that a qualification can only be given if the basic offense was also fulfilled. Independent offenses such as negligent bodily injury can also be committed without the basic offense.

The theft / fraud

§ 242 StGB

Unlike bodily injury, theft and fraud are not primarily criminal offenses against physical integrity, but are property offenses. Like bodily injury, the penalty here is imprisonment for up to five years or a fine. The prerequisite for theft is always that a movable object must have been taken away. Theft occurs when there has been a change of custody. This means nothing other than the breach of another's custody and the creation of new custody.

Example: A perpetrator is jealous of a friend because he always has the latest cell phone and brags about it. He decides without further ado to steal the cell phone from his pocket at the next meeting without the friend noticing. This is exactly what happens.

In the above example, theft can be assumed without any problems. The cell phone is a movable object belonging to another person, and it was taken away by the perpetrator when he broke the custody of his friend and established new custody. Subjectively, the perpetrator acted with intent in the context of a "dolus directus" and with the intention of appropriation.

Theft
Whoever takes away another's movable property with the intention of illegally appropriating the property for himself or a third party shall be punished by imprisonment for not more than five years or a fine.

Fraud is similar to theft, however, in the objective facts it does not require a taking away, but a disposition or, in other words, a voluntary giving away, by a false fact and a mistake.

Example: The perpetrator is in an electronics store and puts the price tag of a much cheaper pair of headphones on an expensive pair. At the cash register, the perpetrator claims that he took the product from the shelf. He gets the headphones at a lower price.

Fraud
Any person who, with the intention of obtaining an unlawful pecuniary advantage for himself or herself or for a third party, damages the property of another by creating or maintaining an error by pretending to be false or suppressing true facts, shall be punished by imprisonment for not more than five years or by a fine.

In the above example, it is not a case of taking away, but of giving away (disposal). The assertion of the untrue fact (deception) is implied in the price tag. A punishable act under the Criminal Code is the consequence, as the company's assets have been damaged.

The formal criminal law

formal criminal law

In addition to substantive criminal law, there is also so-called formal criminal law. This regulates how the substantive criminal law can be enforced. Formal criminal law is an example of regulations for the criminal procedure, which at the end of it provides the punishment for the offender. The legal sources that formal criminal law also requires are the Code of Criminal Procedure (StPO), the Judicial Constitution Act (GVG) and the Juvenile Court Act (JGG). It also covers the process from investigation to execution.

Example: A person is attacked by a perpetrator. After their investigations, the police have determined that this attack was unjustified. The public prosecutor's office now has to file charges for assault. In the criminal proceedings, all evidence is secured and sifted again. At the end of the proceedings, a sentence pronounced by the court is determined. As already mentioned, this amounts to a fine or imprisonment of up to five years in the case of simple bodily injury.

Misdemeanor or felony?

§ 12 StGB

Whether a misdemeanor or even a felony has been committed requires its own consideration. Simple bodily harm, but also theft, are misdemeanors. If one takes a closer look at manslaughter, then this is already a crime. The basic distinction between the two norms is, for the first time, the constituent element of the act itself, but also the legal consequence. In the case of bodily injury, a sentence of up to five years is still possible; in the case of manslaughter, the sentence only starts at five years. The borderline between misdemeanor and felony must therefore have something to do with the threatened sentence. Section 12 of the StGB explains this in more detail.

Crimes and misdemeanors
(1) Crimes are unlawful acts committed in the Minimum dimension are punishable by imprisonment for one year or more.
(2) Misdemeanors are unlawful acts committed in the Minimum dimension are punishable by a lesser term of imprisonment or a fine.

Main penalty and secondary penalty

Main and secondary penalty

In addition to the main penalties, which are always specified in the standard itself, a court always has the option of imposing a secondary penalty. However, this is not directly stated in the standard that defines the punishability. Possible secondary penalties would be the confiscation and seizure of a weapon, or the revocation of the driver's license. This is conceivable in the case of a committed robbery with a weapon, which one actually possessed legally, because one is the holder of a large weapons license. 

The revocation of the driver's license is possible as soon as one has committed criminal offenses that are related to road traffic participation. Conceivable here are any felonies and misdemeanors such as negligent bodily injury or even coercion and hit-and-run.

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The juvenile criminal law

Juvenile criminal law

In the event of a possible conviction, juvenile criminal law makes use of a much wider range of punishments than adult criminal law. Where normal criminal law provides for main punishments such as imprisonment or fines, juvenile criminal law offers far more options. The reason for this is the educational factor of the punishment. In contrast to the well-known main punishments, these measures are the "lex specialis" and are preferable to the latter in the case of an offense committed during adolescence. The Juvenile Court Act provides three options for punishment here.

On the one hand, there are educational measures, which are the mildest punishment in juvenile criminal law. They serve the purpose of making the delinquent aware of the misconduct and counteracting a new delinquency. Social activities or attendance at various courses are conceivable here. The educational measures are followed by the disciplinary measures. These include warnings, various conditions or even youth detention. Consequently, it is a matter of doing community service or a short form of deprivation of liberty through youth detention. The longest form of detention is permanent detention, which may last a minimum of one week and a maximum of four weeks. 

The last option for punishment remains the juvenile penalty. This is the most severe sanction and provides for a minimum term of imprisonment of six months and a maximum of ten years, provided the offense is a crime for which more than ten years' imprisonment is possible.

Final

If you take a closer look at criminal law with all its facets, this is an area of law that can and must be judged very subjectively. From the commission of the crime to the possible penalty, each case is always different and the outcome of a trial with a possible penalty order or conviction depends on a very good defense in court. Will there be a secondary penalty or only a primary penalty? Were the principles of sentencing followed? Can a case not even be dropped altogether before conviction? All these are our tasks for your satisfaction.

No matter what crime you are accused of, misdemeanor or felony, assault or fraud, we are, especially through our Expertise in criminal law and Defense Experience, always the right Contact for your needs!

Do you need defense by a criminal law attorney?

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+49 (0) 2273 - 40 68 504

info@kanzlei-baumfalk.de

Law firm for criminal law in Kerpen, Cologne and Witten

Lawyer for - Labor Law | Criminal Law | IT Law | Data Protection