Is civil infringement a crime?
1. Criminal Law
1.1. Systematic position of criminal law
The entire positive law, that is, the law standardized in laws and ordinances, is divided into two main areas: in Private law and Public law.
The Private law regulates the legal relationships between persons or parties of equal rank or at least legally treated as equal. This is the core area of private law civil right, which is predominantly standardized in the German Civil Code (BGB). This code includes the areas of property law (the term here includes the areas of law of obligations and property law; these include, for example, sales law, tenancy law and property law), family law and inheritance law.
To the Private law also include commercial law (with special regulations for merchants, mainly regulated in the Commercial Code) and commercial law, which includes areas such as stock exchange law, securities law and maritime and air traffic law.
The Public law is characterized by a Superordinate subordination; the provisions of this area of law relate to the legal relationships in the relationship between state and citizens. Public law includes, for example, constitutional law, administrative law, criminal law and the various procedural rights such as criminal, civil and administrative procedural law.
It is the Public law around mandatory law, that is, the bearers of public authority act ex officio; In many cases, the application, participation or consent of the affected citizen is not required. This becomes particularly clear in criminal law when law enforcement agencies such as the public prosecutor's office and the police investigate suspicion of a criminal act "ex officio" and thus sometimes act without or against the express will of the injured party.
1.2. Task and claim of criminal law
The common task of all areas of positive law is human To regulate social relations and the social structures resulting from the coexistence of people assign (Regulatory and regulatory function of the law).
It must be taken into account that large areas of human coexistence follow traditional rules and group-specific norms. Compliance with these regulations is guaranteed by a system of - formal and informal - social control, which is supported by a wide variety of institutions such as families, schools, churches, clubs, associations, companies, trade unions and parties. These react with a sequence of graded social repression and thus ensure "on the spot" that the rules of their respective subsystems are observed. Within the social order, the legal order aims to protect the norms valid as law - an excerpt from the entire norm system - and guarantees their continued existence. Part of these legal norms is secured by criminal law through the threat of special state coercion. Comparable state coercion is also provided in other areas of law, but in criminal law the focus is on threats and enforcement of coercion.
While civil law deals, for example, with the obligation to compensate and pay compensation after damaging acts, criminal law aims to provide the most important areas of human coexistence and socially important interests with special state protection against injuries. The harshness of the legal consequences under criminal law makes it necessary to really limit this protection under criminal law only to particularly important areas of social life. "Like every legal norm, the criminal law norm is only tenable if it organizes social coexistence better. Every legal norm lives from the claim to have to regulate social life and to regulate it better through its existence than without it." (Baumann, 1975, 8).
In other words: the question of the social expediency of a regulation must be posed even more critically for criminal law than for other areas of law.
1.3. Legal consequences of criminal law: penalties and measures
Consequently, this question has to start with the legal consequences provided for by criminal law:
the punishment (imprisonment or a fine) and
the measures of reform and security
(so-called two-way criminal sanctions). The protective function mentioned above (see II, 1.2) is intended to fulfill criminal law in two ways:
On the one hand, it should punish violations of the law that have already taken place by issuing a penalty (repressive nature of criminal law);
on the other hand, by threatening these consequences, it is intended to prevent violations of the law that are only to be feared in the future (preventive nature of criminal law).
1.3.1. Definition of punishment
In this context, punishment can generally be defined as an evil that someone deliberately inflicts on another and with which he reacts to an act that he disapproves of (after Höerster, 1974, 456).
It is therefore essential, first of all, that it is normally a question of the violation of interests (infliction of evil), which the criminal intentionally undertakes in relation to the previous undesirable act of the punished person. This connection to the disapproved behavior of the other was particularly clear in the so-called mirroring punishments of the Middle Ages, in which, for example, the punishment for the thief was to cut off the hand and for the liar to cut off the tongue.
For punishment as a legal term, especially in the area of criminal law, one should ask about the justification for state punishment. Possible answers to this question can then be differentiated according to whether they are primarily related to the disapproved action in the past (retrospectively) or to the goals to be achieved through punishment (prospective), or whether they try to combine these aspects; Depending on the type of answer, either the repressive or rather the preventive function of criminal law is in the foreground.
1.3.2. Absolute penal theory
For the advocates of absolute criminal theory, the punishment has to be based exclusively on the violation of the law committed and does not serve any other future-oriented purposes.
For Kant, one of the most prominent representatives of this view, punishment is only based on the imperative of justice (criminal law as a categorical imperative).
“Judicial punishment ... can never be used merely as a means of promoting another good, for the criminal himself or for civil society, but must at all times only be imposed on him because he has committed a crime; for man can never be used merely as a means to the intentions of another and mixed with the objects of property law ... He must first be found punishable before it is even thought that this punishment will bring some benefit to himself or his fellow citizens to draw. ”(Kant, quoted from Schmidhäuser, 1971, 19/20).
Hegel, also a representative of the absolute conception of punishment, sees punishment as part of a dialectical process - for him punishment is the "ideal restoration of the violated right". The violation of the law is the negation of the legal order, the punishment then "negation of the negation".
"The abolition of the crime is retaliation insofar as it is the concept of injury to the injury and the existence of the crime has a certain, qualitative and quantitative scope, thus also its negation as existence has such a" (Hegel quoted from Schmidhäuser, 1971 , 22).
A glance at modern textbooks on criminal law shows that this absolute conception of criminal justice, which is based on the concept of justice, is by no means only of historical significance. Jeschek writes, for example:
"Punishment is the compensation of a punishable violation of the law by imposing an evil commensurate with the gravity of the injustice and guilt, which expresses public disapproval of the act and thereby creates the probation of the law." (Jeschek, 1978, 10).
Even in the reasons for the judgment of criminal judges there is sometimes a reference to the atonement purpose of the punishment. - And when the reporters of some newspapers vehemently criticize the "violation of justice" in so-called sensational trials through what they consider to be far too gentle penalties, then they can be absolutely certain that this view will have an impact on the public.
In summary, it can be said that the absolute penal theories focus on the restoration of the justice that was thought to have been violated and the violation of the law in the past. The key point here is the question of the justification and justification of state penalties.
1.3.3. Relative Penal Theory
In contrast, the relative theories are more oriented towards the future and ask about the goal of punishment.
Mayer (1967, 20) argues that the judicial punishment comes too late anyway to protect a violated legal interest, and that no judicial judgment can bring a murdered person back to life or restore destroyed property.
According to these theories, the purpose of punishment can therefore only be in the Prevention of future legal violations lying (prevention concept). Depending on the objective, a distinction must be made between general and special prevention.
According to the general preventive view, punishment is not to be justified as a demand for justice (however it is presented in detail), but solely because of its positive consequences for the future. The purpose of the punishment is therefore to have an impact on the general public and to prevent other people from committing such acts by punishing the perpetrator.
While this deterrence was to be achieved in earlier times through the public, particularly cruel execution of corporal punishment (for more details see the three-dimensional representations in Foucault), Feuerbach focuses on the threat of punishment. “The purpose of the threat of punishment in the law is to deter anyone ... from violating the law. The purpose of adding the same is to justify the effectiveness of the legal threat, to what extent without it this threat would be empty (ineffective) ”(Feuerbach after Schmidhäuser 1971, 26).
In this context Mayer (1976, 21) speaks of the "moral-forming power of punishment. Punishment plays an essential role in the development of the basic social ethical attitude; at the same time it makes prohibited actions taboo ”.
In other words - by threatening and imposing a punishment, a piece of socialization should take place here.
A look at the social reality, however, suggests the question of whether this conception of punishment is not too narrowed from the normative-legal point of view. The rising crime figures alone raise considerable doubts about the postulated "moral force of punishment". At most, for individual groups of offenses or groups of offenders, the idea of the general preventive effectiveness of punishments seems halfway realistic.
For the special preventive theory, the focus is on the effect of the punishment on the specific perpetrator. "Every punishment is intended to help re-establish the condemned person's respect for the law and to lead him back to order through his own strength and insight." (Jeschek, 1978, 4).
One of the leading advocates of this view, Franz von Liszt, formulated the goals of state punishment:
"Improvement, deterrence, rendering harmless: these are the immediate effects of the punishment." (von Liszt, quoted from Schmidhäuser, 1971, 27).
In connection with these punitive purposes, Liszt differentiated according to groups of offenders - the occasional offender should be deterred, the habitual criminal should be improved and the so-called incorrigible offender should be prevented from committing further crimes.
1.3.4. Union theory
The so-called unification theories attempt to overcome the difference between absolute and relative, between justification-oriented and purpose-oriented conception of punishment by demanding "a punishment within the framework of guilt and this appropriately, but within this framework wanting to leave scope for general preventive purposes. ... Purpose penalty, but only within the framework of just retaliation (Baumann, 1975, 12).
A legal provision on the principles of sentencing also points in this direction; Section 46 (1) of the Criminal Code states:
The guilt of the perpetrator is the basis for the assessment of the penalty. The effects that the punishment can be expected to have on the offender's future life in society must be taken into account.
And for the execution of the custodial sentence, the Prison Act establishes several goals in a similar way. Section 2 of the Prison Act provides:
In the execution of the prison sentence, the prisoner should be able to lead a life without criminal offenses in the future in social responsibility (prison goal). The execution of the prison sentence also serves to protect the general public from further criminal offenses.
Although it is in line with legislative practice to specify objectives ("should be .. capable ..") and to leave the development of concrete ways to achieve these objectives to practice and / or science, in this case the question arises as to whether the reformist claim of the first sentence is to be canceled again through the back door of the following sentence. A "life in social responsibility and without criminal offenses" can ultimately only be translated as learning how to behave, as "rehabilitation". Whether it is possible to learn for a life in freedom under the conditions of deprivation of liberty must appear all the more doubtful if at the same time the desire for security is accorded such a priority.
In view of such connections between objectives, it seems reasonable to think that legal penal theory cannot have made too great progress since Franz von Liszt.
1.3.5. Approach with Callies
Callies has developed a more advanced approach. He assumes that criminal sanctions "(are) elements of his intersubjective, positive-legal regulatory process that is embedded in the social context of interaction and communication" (Callies, 1974, 255).
Referring to Section 2 of the Prison Act, he sees the imprisonment aimed "at the initiation of an interaction and learning process between prisoner and society" (1974, 159) and formulates a legal right of the punished person to work, training and therapy (1974, 163 ff) . According to Callies, securing through mere imprisonment is not a separate purpose of enforcement. "It is only justified as long as it is necessary from the point of view of the learning process to be initiated" (1974, 171).
In other words - the traditional understanding of punishment as a reactive infliction of evil by society on the perpetrator is constructively overcome, a view that comes close to a psychological way of thinking, but is otherwise likely to be exposed to considerable resistance. In this respect, Höerster (1974, 461 f) can state that »the theory of rehabilitation, if consistently pursued, cannot actually be understood as a theory of (repressive) punishment and criminal law, but rather a theory of (reforming) measures and the right to take measures, which makes the abolition of punishment a requirement «.
1.3.6. Measures of improvement and security
At this point it is worth remembering the two-way nature of criminal legal consequences mentioned above, which, in addition to punishment, also provides for measures of reform and security as a state reaction medium.
In detail, these measures are
1. Measures with imprisonment
Placement in a psychiatric hospital according to § 63 StGB,
Placement in a rehab facility in accordance with Section 64 of the Criminal Code,
Placement in a socio-therapeutic institution in accordance with Section 65 of the Criminal Code,
Placement in preventive detention in accordance with Section 66 of the Criminal Code;
2. Measures without deprivation of liberty
While the law in Section 46 (1) of the Criminal Code provides the guilt of the perpetrator as a yardstick for determining the punishment (but without saying how this guilt is to be measured), these legal consequences have different requirements.
According to Jeschek (1978, 648), the punishment measured according to the guilt can only fulfill the preventive function of criminal law to a limited extent. »For reasons of public security, a longer deprivation of liberty than is deserved according to the guilt of the perpetrator may be necessary, for reasons of rehabilitation of the perpetrator, a different type of deprivation of liberty may be necessary than the normal prison system. In addition, certain interventions without deprivation of liberty must be provided for in order to protect the community. Finally, in the event of danger, measures against culpable offenders are indispensable.
The reasons given here for the need for legal consequences that are not punishments make fundamental doubts about the value and effectiveness of state punishment as a means of changing behavior appear in an even clearer light.
As a prerequisite for the imposition of reform and security measures, § 62 StGB formulates the principle of proportionality:
A measure of improvement and protection may not be ordered if it is disproportionate to the significance of the offenses committed and expected by the perpetrator and to the degree of danger emanating from him.
While the main reason for the imposition of punishments is the offense and the disapproved behavior of the perpetrator in the past, the focus here is solely on the perpetrator's personality, the danger of which is to be assessed according to previous offenses and according to the prognosis for future offenses. These are legal consequences that apparently exclude individual groups of people from the general system of penalties and provide for special regulations for them.
1.3.7. Relationship between penalties and measures
In this context, it is worth remembering the typology of offenders at von Liszt, the division into occasional offenders, habitual criminals and incorrigible offenders with the respective punitive purposes of deterrence, reform and protection of the general public.
Legal reform efforts following von Liszt aimed at the abolition of all penalties in favor of treatment and precautionary measures, aimed at a right to take measures instead of criminal law. In the 1920s, for example, Radbruch saw the goal of developing criminal law in the "penal code without penalties," in the "replacement of criminal law with better ones, with a" right to reform and preserve "". (Radbruch / Zweigert, 1952, 143) And around the same time, under the leadership of Enrico Ferri, the draft of such a penal code was created in Italy, which instead of penalties was limited to protective and reforming measures. - The political development then went in the opposite direction.
In German criminal law, the so-called two-track approach, the juxtaposition of penalties and measures, developed from these approaches, according to Schmidhäuser the distinction between "retaliatory and non-retaliatory criminal law consequences". (Schmidhäuser, 1972,2 23)
In his opinion, the measures have a “completely different nature”; they “do not retaliate in general preventive terms” an act in its particular worthlessness, but “take the breach of law only as an occasion and point of contact for a special preventive action, which in its nature and duration is entirely on the Future of the perpetrator is related and not to the reprehensibility of his act "(op. Cit., P.223). And shortly afterwards he contrasts the measures as special preventive criminal law consequences with the “general preventive penalty”. (loc. cit., p.224)
If one sees the emphasis on special preventive aspects together with the purpose of avoiding danger, which is repeatedly formulated in the statutory provisions for the individual measures, the question arises as to the justification for this duality.
the legal consequences. In any case, the differences in content between the purposes aimed for by penalties and those aimed at by measures are not as serious as might initially be assumed.
Mayer's accusation that the distinction between imprisonment and preventive detention is a "fraudulent label" is also aimed in this direction. (Mayer, 1967, 30) Conversations with those affected repeatedly show that at least the measures associated with deprivation of liberty are experienced as punishments, and even more severe than those legal consequences that have been expressly declared as punishments.
Jeschek explains to which groups of offenders the law of measures applies and that it is a matter of representing the special preventive functions of punishment: “But there is also a type of crime whose carriers have the ability to bind themselves to rules and values based on inherited dispositions, both physical and mental Defective or severe socialization deficiencies are largely absent and in which the influence of the punishment is therefore weakened to the point of ineffectiveness, so that even the early imprisonment is not sufficient for security (state criminal). .. Against them, the criminal law, because the regulation of self-determination is largely disturbed or switched off by the sense of duty, must proceed by other means in order to fulfill the task of social protection. For this purpose, modern criminal law has created measures for improvement and protection which, as targeted socio-pedagogical or eliminating interventions, are intended to capture the dangerous situation at the root «(Jeschek, 1978, 4).
Jeschek names the group of recidivists as groups of perpetrators to whom this should apply, among other things, in whom there is a distinction between “habitual criminals with a deeply rooted tendency towards crime” and “inclination perpetrators with repeated predicate offenses who, according to their personality development, are not yet committed to a career as a criminal «Differs.
He also includes the group of "mentally defective criminals". By this he understands "people with non-sick mental disorders, which appear as psychpaths, neuroses, drive anomalies or as various degrees of feeble-mindedness or decline in age." (Jeschek, op. Cit., P.5) For this group of people, in addition to the penalty based on the principle of guilt, there is a measure (the combination of penalty and measure is provided for in the law) or in the case of those who are legally incapable of guilt or who are less guilty, the measure takes the place of the Punishment.
However, what is fundamentally required is the existence of a factual and illegal act; This central position of the offense committed by the perpetrator shows the German criminal law as criminal law. With a stronger focus on the personality of the perpetrator, on the other hand, one speaks of criminal law; This can be found to some extent in juvenile criminal law.
The specific characteristics of such a constitutive and unlawful act result from the tripartite structure of crime, which consists of the stages of factuality, unlawfulness and guilt.
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