German Criminal Law: General Part (Volume 1) - Basic Structure of Criminal Principles (3rd Edition, 1997)

Author: (German) Roxin
Publisher:
Publication 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 includes perpetrators and participants, attempts, inaction as constitutive acts, and the theory of concurrence, and 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 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 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, through my work, could gain a relatively complete understanding of 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 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 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 were involved in should not be attributed to them as part of their constitutive act, meaning that criminal punishability 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 imputation theory I established in modern form. Over the past few decades, this objective imputation theory has been implemented in Germany and has sparked lively discussions internationally. The guiding criminal policy idea here is that, through legally disapproved or permissible risk, 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 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 fault, meaning that the actor is not in a state that would lead them to understand the law's instructions on conduct, such as when they are in a state of mental confusion when 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 uncommunicative." Therefore, according to my theory, responsibility is "normative uncommunicativeness." Here, the issue is the conditions for criminal punishability, not the debate over the freedom of human will. On the other hand, the responsibility in existing 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 prohibitionary 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 risk of recidivism, nor is there a model for imitation, making criminal punishment 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 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!