German General Theory of Criminal Law (Volume 1)

Author: (German) Roxin
Publisher:
Publishing 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 perpetrators and participants, attempt, inaction as a constitutive act, and the theory of concurrence, was already published in German in 2003. The Chinese translation of the second volume 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 law theory in a comprehensive and clearly readable form, while carefully clarifying and considering various supporting and opposing arguments. Since there are no complete German-language documents in Chinese libraries, it is, in my view, beneficial if readers can gain a relatively complete understanding of the state of German academic discussions and judicial decisions through my work. Second, I would like to introduce to Chinese legal professionals my own criminal law system proposal based on criminal policy. According to this proposal, "unlawfulness" and "responsibility" are the two central categories of criminal dogmatics. The task of "unlawfulness" belongs to controlling conduct. By declaring a specific act as legal or illegal, law tells people what they cannot or must do under the threat of punishment, and at the same time, it declares that all modes of conduct not subject to legal threat are declared to be of little significance in criminal law. 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 were involved in should not be attributed to them as a 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 discussions internationally. 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 detailed explanations, see Sections 11 and 24 of this book. In contrast, in responsibility, the issue is not whether unlawfulness is of little significance 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 fault, meaning that the actor is not in a state that would lead them to understand the law's instructions on conduct because, for example, they were in a state of mental confusion when committing the constitutive act, or because their behavior was in a state of unavoidable ignorance. 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 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 violates a prohibitive provision merely because of a threat to their body or life, there is a situation of emergency where responsibility is excluded. Here, the legislator can be lenient because the actor is not acting out of criminal motives but out of fear. In this way, there is no basis for the danger of recidivism, nor is there a model for imitation, and thus criminal punishment becomes superfluous. Detailed explanations of these points are provided 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 of the basic ideas of my criminal law system will help readers fully understand this book and generate interest in its content! I thank 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!