German Criminal Law General Part - (Volume 1)

Author: 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 perpetrator 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 is expected to 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 serve my Chinese readers in two aspects. My "general theory" should introduce to my Chinese readers the academic views prevalent in Germany and judicial decisions related to general criminal law 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, I believe it would be beneficial if readers could gain a relatively comprehensive understanding of the state of German academic discussions and judicial decisions through my work. Second, I would like to introduce my own criminal law system proposal based on criminal policy to Chinese legal workers. According to this proposal, "unlawfulness" and "responsibility" are two central categories of criminal dogmatics. Unlawfulness pertains to the task of controlling conduct. By declaring a specific act as legal or illegal, law informs people of what they cannot or must do under the threat of punishment, and at the same time, it declares all acts not subject to legal threat as having no significant legal importance. The standard for distinguishing between conduct not subject to punishment and conduct subject to punishment is established by the standard of permissible risk. For example, when a person's behavior complies with traffic rules, they are acting within permissible risk, and therefore, the consequences of the accident they are involved in should not be attributed to them as part of their constitutive act, meaning that criminal liability is excluded from the outset. Conversely, when a person's behavior 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 liability theory I established in modern form. Over the past few decades, this objective liability theory has been implemented in Germany and has sparked lively international discussion. The guiding criminal policy idea here is that, through legally disapproved or permissible risks, the boundary between state intervention and individual freedom should be divided according to carefully formulated rules. For details, see Sections 11 and 24 of this book. In contrast, in the context of responsibility, the issue is not whether unlawfulness is or is not of significance, but rather 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 fault, meaning that the actor is not in a state that would guide them toward the law's explanation of conduct, such as when they are in a state of mental confusion while committing the constitutive act, or when their behavior is due to an unavoidable lack of knowledge. In such cases, I speak of the actor being "normatively uncommunicable." Therefore, according to my theory, responsibility is "normative uncommunicability." Here, the issue is the conditions for criminal liability, not the debate over the freedom of human will. On the other hand, the existing responsibility in criminal liability 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 violates a prohibitionary provision merely out of fear of physical or life-threatening circumstances, there is a state of emergency where responsibility is excluded. Here, the legislator can show leniency because the actor is not acting out of criminal motives but out of fear. As a result, there is no basis for the risk of recidivism, nor is there a precedent for imitation, making criminal punishment superfluous. These points are elaborated in detail in Sections 19 to 22 of this book. The guiding criminal policy idea behind this responsibility category is my theory of the purpose of punishment. The following explanations of this theory are developed in Section 3: 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 of the fundamental ideas of my criminal law system will help readers fully understand this book and generate interest in its content! I thank the Legal Press 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!