German Criminal Law General Part (Volume 1) (Volume 1)

Author: [German] Claus Roxin
Publisher:
Publish Date: 2005-05-01
Features: The book now presented to the readers is the first volume of a two-volume work. This series explains the legal foundations of general principles of German criminal law. The second volume of this book, which includes the principal actor and accomplice, attempt, omission as a constitutive act, and the theory of concurrence, was already published in German in 2003. The Chinese translation of the second volume of this book should be published as soon as possible after the first volume. The entire work is a complete textbook on the general theory of modern German criminal law. Here, I would like to provide my Chinese readers with services from two aspects. My "general theory" should introduce to my Chinese readers the academic views prevailing in Germany and judicial decisions related to general criminal theory in a complete and clearly readable form, while carefully clarifying and considering various supporting and opposing arguments. Because there are no complete German-language documents in Chinese libraries, it seems beneficial to me if readers, through my work, can relatively comprehensively understand the state of German academic discussions and judicial decisions. Second, I would like to introduce to Chinese legal workers my own criminal law system proposal based on criminal policy. According to this proposal, "unlawfulness" and "responsibility" are two central categories of criminal dogmatics. What belongs to unlawfulness is the task of controlling conduct. By declaring a certain conduct as legal or illegal, law tells people what they cannot do or must do under the threat of punishment, and at the same time, it declares all modes of conduct not threatened by law as having no significant legal importance. The standard for distinguishing conduct not threatened by punishment and conduct threatened by punishment is established by the standard of permissible risk. For example, when a person's conduct complies with traffic rules, they are acting within permissible risk, and therefore, the consequences of the accident they were involved in should not be attributed to them as their constitutive act, meaning that criminal punishability is excluded from the outset. Conversely, when a person's conduct endangers traffic, they exceed this permissible risk, and therefore, the possible consequences of the accident should be attributed to them as negligent or intentional criminal unlawfulness. This is a concise expression of the objective attribution theory I established in modern form. Over the past few decades, this objective attribution theory has been implemented in Germany and has sparked discussions internationally. The guiding criminal policy idea here is that, through legally disapproved or permissible risk, the boundary between the state's interference and the freedom of individual citizens should be divided according to carefully formulated rules. For details, see Sections 11 and 24 of this book. In contrast, in responsibility, the issue is not whether unlawfulness is of significance or not, but whether a conduct that complies with unlawfulness must also be subject to criminal punishment. Usually, this is the case, but under two conditions, the punishment for such conduct that complies with unlawfulness can be waived. On the one hand, the exclusion of responsibility exists when the actor acts without responsibility, which means that because the actor, when committing this constitutive act, for example, is in a state of mental confusion, or because the actor's conduct is in a state of unavoidable ignorance, the actor is not in a state that would lead them to the legal explanation of conduct. In such cases, I speak of the actor being "normatively uncommunicative." Therefore, according to my theory, responsibility is "normative uncommunicativeness." Here, what is at issue are the conditions for criminal punishability, not the debate over the freedom of human will. On the other hand, the existing responsibility in responsibility can also be excluded by law or constitution if there is a lack of special or general preventive need for punishment due to the actor's special circumstances, and thus, punishment can be waived. For example, when someone merely violates a prohibitive provision due to a threat to their body or life, there is a situation of exclusion of responsibility in an emergency. Here, the legislator can be lenient, because this actor is not acting out of criminal motives but out of fear. Thus, there is no basis for the danger of recidivism, nor is there a model for imitation, so criminal punishment becomes superfluous. These points are explained in detail in Sections 19 to 22 of this book. The guiding criminal policy idea of this responsibility category is my theory of the purpose of punishment. In Section 3, this theory develops the following explanations: various forms of criminal punishment should not only be conditional on responsibility but also on the need for preventive criminal punishment. I hope that this brief overview of some basic ideas of my criminal law system will help readers fully understand this book and generate interest in its content! I am grateful to the Legal Publishing House for making the decision to publish this work. I am particularly grateful to Professor Wang Shizhou, who undertook the translation of this book, worked very conscientiously, and completed the translation in a relatively short time. If this book can contribute to deepening the joint work between Chinese and German criminal law scholars, it will be my great honor!