What do you think of the "General Treatise on Criminal Law in Germany: Lessons from Jurisprudence" (Chapter XXVI)? Thoughts on this article welcome everyone to leave a message or contribute to participate in the discussion. For the original manuscripts sent by this WeChat public platform, rewards will be given as appropriate based on the amount of reading, and the Hunan Provincial Criminal Rule of Law Research Association will also award the original articles every year and give different levels of rewards. We look forward to hearing from you!
Submission email: [email protected]
Author: Ingeborg · Poopper
Publisher: Peking University Press
Translators: Xu Lingbo, Yu Haodong
Publication date: August 2023
Chapter XXVII: General Rules for Attribution to Criminal Suspects
1. Excessive Limits - Robbers' Cases
The defendant and an accomplice planned to attack the hotel owner and rob him of his belongings, but after 20 minutes the tavern owner still did not show up at the scene of the crime, the defendant thought of a better solution, so he suggested that he abandon the robbery, and the two left the scene of the crime, and later carried out the act of hitting the hotel owner and taking the money with other accomplices, but without success.
The author explains what constitutes an over-limit through a case in which the defendant, although he had the intention of complicity with the perpetrator of the crime beforehand, did not have the obligation to prevent the crime from occurring after ceasing to commit the crime. However, because there were two intentional contents in the course of the crime, the first intentional content has been suspended, and although the perpetrator of the subsequent crime committed the same crime, the content of his intention has long since changed, and he has changed from committing the crime with the defendant to committing it with others. Therefore, the consequences of the subsequent criminal act cannot be attributed to the defendant, which is also a manifestation of excessive practice.
There are similar cases of over-limiting in mainland China, where if two people commit the crime of theft together, and one of them commits robbery in the course of the theft, because the robbery is far beyond the intentional scope of the theft, it is an over-limit, and the guilt of robbery cannot be attributed to the perpetrator of the crime who did not commit the robbery on the other side. However, the above examples are still different from those in the book. The book is less common than the limit, and it also makes us think about it again.
II. The Principle of Subordinate Attribution in the Context of Accomplices: Farm Inheritance Cases
The defendant, an elderly farmer, gave the farm to his son K. But he decided to kill because he feared that his son's alcoholism and violence would eventually destroy the family and farm. S agreed to shoot K after agreeing with the defendant for payment, and the defendant gave S a photograph and a specific description of K's physical features. At about 10 o'clock in the evening of a cold winter, S ambushed in the horse that K had to pass through to return home, and the reflection of the snow was the only light source at that time, at this time, neighbor B passed by the horse, B happened to be similar, and he was holding a plastic bag like K, and S mistakenly thought that B was K, so he shot him.
Through case studies, the author analyzes the problem of subordination in accomplice situations.
According to the first view, the abettor should not be held responsible for the consequences of the mistake of committing the attack, since according to the instigator's assumption, neither the act of execution nor the result of the erroneous object can be attributed to the intention of the instigator.
Another view is that the instigator should be responsible for part of the consequences of the mistake of the striker, but not for the results of the consequence.
The Federal Court, on the other hand, rejected this view, holding that the abettor was responsible for the outcome of the crime, and found the abettor guilty of intentional homicide. The reason is as follows: the instigator indirectly infringes on the protected legal interests through the influence of the positive and negative. A particular fact that is not important to the principal offender himself, but is regarded as legally important to the instigator is proved by Xu Ya for special reasons. The adjudication committee did not consider that the special reason was that the two defendants had different intentional directions. However, the legal connection between the principal offender and the accomplice is not absolute, and according to the law, the act of the abettor must also be intentional. When the principal offender has deviated from the envisaged picture, he is not responsible for you under criminal law. Therefore, the adjudication committee did not believe that S's misunderstanding would cause the crime to become another crime for the defendant that was no longer intentionally included by him.
The foregoing argument establishes that the act committed by S was instigated by the defendant to be carried out by him, then, as emphasized by the Federal Court, if an act is not important to the principal offender but is important to the perpetrator, it requires a special reason that a mistake of perception cannot negate the attribution of the result to the principal offender, but can deny that the attribution of the result to the accomplice would violate the principle of complicity subordination.
3. Based on articles 28 and 29 of the Germany Penal Code
Relaxation of subordination requirements – tax evasion cases
(1) What are the special identity elements for the establishment of a criminal punishment
The constitutive elements of a status offender, that is, the constitutive elements premised on the fact that the principal offender has a crime with special identity elements, can only be realized by the person who has this element, i.e., the person with identity. The absence of the status of a principal offender as required in the constituent elements excludes him from being a principal offender, which at first glance is a necessary conclusion in the literal sense of the constitutive elements of a status offender.
Why is it that an undocumented person, although he cannot personally fulfill the constitutive elements of a status offender, can be punished as an accomplice to the status offender when he cooperates with the identity person? The characteristic of the identity person compared with the special status person is not only that he has a specific obligation, but also that this obligation is always connected with a special position of power conferred by a certain law. The special obligation status has a special dual nature as a constituent element, which gives the identity the possibility of infringing on the protected legal interests, while the non-status person, although he does not have this possibility himself, can indirectly obtain part of the possibility as a tutor or helper.
According to the rule of the subordination of accomplices, when attributing the illegal element of abuse of power to a non-status-possessed tutor or helper, there is no wrongfulness created in his own right, and at the same time, the identity offender also includes the violation of an obligation that only a person with a status has a high degree of personality, and this violation of the obligation cannot be transferred to the person with special status, and from an empirical point of view, the violation of the obligation is inseparable from the abuse of power.
In this case, there is no such obligation relationship between the defendant and the specific tax payment process, because he did not import goods into the EC economic area, so he did not have the corresponding obligation to declare, and he did not violate his own declaration obligation, but helped others to violate the declaration obligation. However, the defendant's conduct did not contain the special and highly personal element of a breach of a special obligation.
We conclude that the legal status of the principal offender in all the constituent elements of the crime is a special identity element, especially in the constituent elements of the obligation to be breached, such as the duty of care and maintenance, and only in a few constituent elements, the identity attribute specified is not the identity of the principal offender of a highly personal nature, typified by the element "man" in the crime of exhibitionism in section 183 of the Germany Criminal Code The reason why only men can satisfy the constitutive elements of the crime as the direct principal offender of article 183 exhibitionism is not because men have a certain special legal status or even special rights, but because only men can produce the objective effect that article 183 strives to avoid through the act of exposure, and the woman's exposure may be seductive or comical according to the woman's own charm, but only the exposure of the man is threatening, and the reason for limiting the scope of the crime to men is limited, There is no special obligation on a thousand men, so when a woman causes a man with mental illness to commit an act of exposure, there is no reason to punish the woman as an indirect principal offender of exhibitionism, as mentioned earlier, there are very few cases in German criminal law, which Herzberg calls the "functional factual element", and one can apply the following rule: The principal offender identity element of the evidentiary penalty that appears in the constituent elements is usually an element of identity within the meaning of section 28, paragraph 1, of the Germany Penal Code.
(2) Unreal crimes abusing public office - cases of exchanging blood samples
According to the general theory, not all elements of special obligations are dealt with according to the principle of semi-subordination, but the distinction between real and unreal identity offenders The so-called unreal status offender refers to the existence of a general non-status crime as a backdrop, such as the crime of intentional injury by taking advantage of one's position and the crime of obstructing the execution of criminal punishment by taking advantage of one's position, which is a crime of unreal identity.
Whether a crime is real or not is a duty crime is usually controversial and uncertain. The following verdict on the use of one's position to facilitate the obstruction of the execution of a criminal punishment is an example of this.
The defendant was incapacitated because he was drunk and caused a traffic accident, the police took a sample of his blood, and he agreed with the investigating police officer to exchange his own blood sample with that of another person, who had a much lower blood alcohol concentration under section 315c of the Germany Penal Code, and the policeman proceeded to commit the offence of preventing the defendant from driving while intoxicated and was punishable. The Federal Court found the defendant guilty of harboring a public official (i.e., the current crime of obstruction of the execution of a criminal sentence by a public official).
The state court understood the crime of farting by a public official as a real duty crime, which was found in the book to be correct, since the difference between the constituent elements of section 346 of the Germany Penal Code (section 258a of the current law) and section 257 (section 258 of the current law) is not the special status element of the principal offender as opposed to article 257, which is not an aggravating of the sentence, but an independent constituent element of article 346.
In order to be able to show that the identity of a public official is the identity of the criminal punishment, it is necessary to delink the duty crime from the corresponding ordinary crime, and people can treat the duty crime as an independent crime, but this is not very convincing, because in other respects, the duty crime as an independent crime will also be used to argue other conclusions, this technique of decoupling the special constituent elements of the federal court has only been used twice, that is, in order to demonstrate that the element of the crime of murder is a probative element of punishment, not an aggravating element of punishment, but in fact, in the exculpation of the crime of murder, Decoupling is completely unnecessary, because the highly personal element of murder is a pure element of responsibility, without any element of wrongdoing. (See Chapter 17 of this book for side codes 43 and below.)
(3) Whether there is an element of responsibility to prove the criminal punishment - the case of modern horse fetish
The few elements of the constituent elements of the probative penalty are, in general terms, pure elements of responsibility.36 Including: malice in article 90a (defamation of the state and its symbols), article 130 (incitement to the population), article 225 (ill-treatment of protected persons) of the German Penal Code, and unscrupulousness in article 225 of article 315c (offence against road safety), when the accomplice has the elements of responsibility for such a probative penalty and the principal offender does not, or when the accomplice is committing the crime and the accomplice is not, To illustrate how such elements of the burden of proving a penalty should deal with the lack of actual cases, we must use hypothetical cases
In order to avoid being 5-10 minutes late for the meeting, the boss ordered the driver to drive at too fast speed in a poor vision environment and overtake in violation of traffic rules, and the driver obeyed the order for fear of being fired by the boss.
According to the general theory, in the violation of traffic rules, the traffic participant is selfish or indifferent and ignores his or her obligations in road traffic, and the act is considered to be unscrupulous. In this sense, what is unscrupulous in the above case is that it should be the act of the boss, not the act of the driver when he is forced, if the principle of section 29 of the Germany Penal Code applies to this situation, that everyone can only be punished according to the degree of his responsibility, the boss can establish the perpetrator of the crime of endangering traffic, but in fact article 29 cannot be applied in this case, because a punishable accomplice cannot be established for a principal act that does not meet the constituent elements. The element of responsibility to justify punishment is outright heretical in the Germany criminal law system.
On the contrary, the principal offender's conduct is evaluated as unscrupulous, while the accomplice is not, and cannot be placed without contradiction in Germany's system of limiting subordination. Thus, there is also a theoretical argument that accomplices should be unpunishable under article 29.
The argument for interpreting the above elements as elements of wrongfulness is also that these elements are only one of the options for the constituent elements of the offence in question: is it necessary to use them as an element of the probative punishment in one of the sub-elements of the same selective constituent element that is particularly reprehensible in one of the sub-elements, but not in another?
The general theory interprets these elements as the elements of the actor's attitude, and is therefore the element of responsibility, on the one hand, these elements are regarded as elements of responsibility; On the other hand, the contradictory imposition of the statutory rules in articles 28 and 29 suggests that the element of responsibility should not be understood as an element of proof of the penalty, and if it could, it could be regarded as an aggravating element.
Fourth, the highly personal element of murder - gun homicide
At the end of World War II, when the U.S. military occupied an area, the defendants asked them to arrest and shoot a gendarmerie captain to death on the grounds that the latter had killed a migrant worker, but this was not the case, and the U.S. soldiers shot the gendarmerie captain without trial. The defendant did so with despicable motives.
The Federal Court, which found the defendant guilty of murder, found that the sentence was erroneous in law and changed the sentence to the defendant guilty of intentional homicide, and superfluously pointed out that the despicable motive could be examined at the sentencing stage, and the Federal Court interpreted the rules of section 50 of the then German Penal Code (now section 28 of the German Penal Code) as follows:
The aim of the amendment is that each participant can only be punished according to his or her own degree of responsibility, which is the basic principle expressed in section 50 of the Germany Penal Code, and the aim of the Harmonised Act of Criminal Law is not to eliminate the dependence of accomplice on the constituent elements of the principal offence and the illegality. Therefore, based on the provisions of article 48 (current article 26), the instigator can only be punished in accordance with the provisions of the criminal law that constitute the constituent elements of the violation of the law by the principal offender.
The Federal Court also held that the principle that each person is punished solely for his own responsibility does not mean that when the principal offender lacks the identity element of the probative punishment, even if the lack of a simple element of responsibility, the offender can be punished according to the constituent element.
The mode of conduct provided for by the legislation in article 211 of the Germany Penal Code is not an aggravating circumstance of homicide, but another crime, namely, murder...... Section 50 (i.e. section 28 of the current Germany Penal Code) cannot be applied to the despicable motive set out in article 211, since the element is not an aggravation of the sentence, but the punishability of the crime of murder.
The legislator gave the Federal Court a practical opportunity to re-examine its legal view through the establishment of Article 28 of the Germany Penal Code, which stipulates that the statutory sentence can be reduced in accordance with the provisions of Article 49 for the absence of the identity element of the probable sentence, and when the principal offender has the elements of murder, the current view of the Federal Court will lead to preferential treatment for those who do not have these elements, because according to the Federal Court, the minimum statutory sentence for murder is one year in prison, The lower statutory sentence for aiding and attempting to commit murder is one month imprisonment for intentional homicide, one year imprisonment for abettor, and one year imprisonment for aiding and attempting to teach for intentional homicide. In order to avoid this situation, the Federal Court now stipulates that the statutory minimum sentence for an accomplice to murder shall not be lower than that for an accomplice to intentional homicide, on the grounds that the interdiction effect of the constituent elements of misdemeanors in the competition theory is the blocking effect.
This proves once again that the Federal Court's view is a lie, since according to its view, the constitutive element of a misdemeanour is not an accomplice to the crime of intentional homicide, but an accomplice to the crime of murder. The introduction of the mechanism of interdiction of misdemeanors is to correct the mistakes of the legislator, not the errors of precedents, and the precedents can correct their own mistakes on their own, perhaps because they lack a holistic view, and the legislator is wrong in setting the aggravating elements, although a higher statutory upper limit is set, but at the same time a lower statutory penalty is set compared with the basic composition. However, the Federal Court held that when an accomplice to a murder lacks the element of murder himself, he is not an element of a misdemeanor, but an accomplice to the crime of intentional homicide, but an element of a felony.
The pain that law students in recent times have to face in their introductory training may be due to the fact that the Federal Court of Justice has noticed the tendency to re-examine its legal views in the accompanying opinion of a judgment, but it has reaffirmed its view once again that the views expressed by the federal judges have dashed hopes for improvementYank proudly declares that when he asked the trial committee to submit legal questions to the grand trial committee, he pointed out that when the crime of intentional homicide under section 212 of the Germany Criminal Code could not be applied because the statute of limitations had expired, Even if the centralized caretaker does not have a despicable motive, he can be traced back to the perpetrator of the crime of murder. Van · held that because the legislator did not refer to the Federal Court's judgment on the murder element in setting up section 28, the problems that arose in the application of the thousand murder element in section 28 were to blame the legislator in her prediction: but it seems to me that no one should expect the judgment to easily abandon this reasonable and legally prescribed interpretation without amending the law, and to interpret the unamended article 211 as an aggravated composition of article 212. In the absence of an external impetus and a substantially persuasive reason to promote such a change in understanding, precedents are criticized for not only making mistakes over the decades, but also for making numerous erroneous judgments, and continuing to lead to new wrongful judgments, which will not change in the foreseeable future, and cannot be concluded, unless there are repeated contradictory treatments, if this is not a "persuasive reason" to promote a change in understanding, So what could be a more convincing reason?
Producer: Zhang Yongjiang
Author: Zhang Tengfei, 2023 graduate student of law (law) at the Law School of Xiangtan University
Editor: Ai Songxia
Editor-in-charge: Liao Peilei
Review: Li Lan
WeChat public account| Hunan Provincial Criminal Rule of Law Research Association
Sina Weibo| @湖南省刑事法治研究会
Today's headlines| Hunan Provincial Criminal Rule of Law Research Association