【Reading Notes】 General Treatise on Criminal Law in Germany: A Case Study (Chapter 29)

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01

Content reading

Section 13 of the Germany Penal Code expressly stipulates that: (1) A person who does not prevent the occurrence of a result which is a constituent element of criminal law shall be punished only if he has an obligation to ensure that such a result does not occur and if his omission is equivalent to the fulfilment of the statutory constituent elements as a result of the act. (2) The penalty may be mitigated in accordance with paragraph 1 of Article 49. Accordingly, a (impure) omission is established only if the perpetrator has an obligation to ensure that the result does not occur in accordance with the law. This assurance is referred to as guarantor status.

In the practical application of the hint section, Professor Popper argues that all guarantor obligations have a special legal basis, but not all special obligations are guarantor obligations. The first thing to be determined is that the obligation consists in requiring the adoption of specific measures that are appropriate to prevent the outcome from occurring. The legal basis of such an obligation can be derived from civil law or public law, and it can be derived directly from legal provisions, such as family law duty of care or public office, or from contractual agreements. Nor is the source of the obligation of the guarantor of the antecedent act not to be criminal law, since it is not necessary for the pre-offence to prove such an obligation to be punishable. If the fulfillment of the constitutive elements of the crime is the basis of the guarantor's obligation, then the legal interest protected by the constitutive elements of the crime must be the same legal interest that the guarantor's obligations are to ensure that the guarantor's obligations are not dangerous. Furthermore, Professor Popper divides guarantors into protective guarantors and supervisory guarantors, specifically: (1) protective protectors: when the beneficiaries of a special obligation have a special dependence on the performance of the obligation, the guarantor obligation arises from the special obligation. For example, a child is dependent on his parents for care from birth until he is able to take care of himself. In the case of a contractual obligation of the guarantor, such reliance arises only if the counterparty to the contract fails to take precautions because he believes that the other party will perform the contract, or if he enters into a specific danger based on this trust. Therefore, when the traveler embarks on a journey with a mountain guide, the guide has the obligation to be a guarantor. If the guide does not show up at the meeting point and the traveler therefore goes up the mountain alone, the guide cannot act as a guarantor for an unfortunate accident that occurs later. In particular, when the guarantor's obligation arises from the guarantor's relationship with the protected person, then the guarantor's obligation is usually part of the guarantor's obligation to protect the protected person from danger, irrespective of the specific source of the danger. This applies to parental sponsorship obligations. In the case of the guarantor's obligation, it depends on the specific content of the contract. The nanny is obliged to take care of the full protection of the child during his time at work. On the contrary, the obligation of a mountain guide is limited to protecting the climber from the dangers of mountaineering, and is not responsible for protecting him from other tourists or even being deceived by others. (2) Supervisory guarantor: The obligation of a supervising guarantor is defined according to the source of the danger that the guarantor is responsible for preventing. First of all, it includes accountability for dangerous factories such as nuclear power plants, firearms, poisons, and the motor vehicles we see. These guarantor obligations will benefit anyone caught in the field of this source of danger. The guarantor of the antecedent act is also an obligation to supervise the source of danger, i.e., the source of danger caused to others by one's own illegal pre-act. The guarantor obligation arises only when the person at risk lacks the physical or psychological ability to protect himself from the danger. Thus, the principle applies in this regard as well: even if the danger eventually becomes to the point where the person in danger cannot deal with it on his own without the help of others, no one can only take responsibility for his own self-imposed danger alone. At best, only the general rescue obligation under section 323c of the Germany Penal Code is relevant. The self-imposed danger of self-responsibility cannot be justified by any guarantor obligation. Thus, the Federal Court's attempt to deduce on the basis of the marital relationship between the husband and wife that the wife was under an obligation not to tolerate assault by her drunken husband by any effective but life-threatening means of defence also failed on the grounds of self-endangerment. Finally, the guarantor's obligation must be concretized in the case to determine what kind of conduct the perpetrator is obligated to perform. Only then can it be further judged whether the act can prevent the causal process that actually led to the outcome. The following is a detailed illustration of Popper's point of view through the case studies in the book:

Introduction and interpretation of the case

1. Obligations of the guarantor of the former act

Case 1: Emergency defense case

(1) A brief summary of the case

The defendant tried to help his friend escape from the aggressor, who later died, when he was attacked by the aggressor with a knife. When the two sides collided, they both fell to the ground and the knife fell from the hands of the aggressor. The defendant got the knife and began to stab the aggressor. The stabbing was initially justified on the basis of emergency defence, but when the aggressor fell helplessly, the defendant, out of anger, continued to ride on his back and stabbed him in the thigh with a knife. The defendant then left the scene with his friends, believing that the aggressor had been fatally wounded, but that there was a possibility of saving. The aggressor was then taken to the hospital, but died due to excessive blood loss. Based on the defendant's belief that there was still a possibility of preventing the death of the aggressor, the court of fact held that the defendant had indirect intent.

(2) Federal court judgments

The Federal Court found in favour of the Defendant that: (1) the wound that caused the death of the aggressor arose from a stabbing act committed by the Defendant while he was still in the emergency defense phase. (2) The act of stabbing, although it caused the defendant to lose blood and die, can be justified on the basis of emergency defense. The danger to the victim's life caused by the act does not give rise to the obligation of guarantor of the previous act.

(3) Popper's view

The defendant in the case was found guilty of intentional homicide by omission on the following grounds:

Defensive Emergency Defense:

In this case, the defendant's defensive measures based on emergency defense did not create an unlawful act against the aggressor. The aggressor is in danger as a result of further damage caused by the act of defence, and he is solely responsible for the creation and prevention of such danger. The defender is subject to a maximum rescue obligation under section 323c of the Germany Penal Code. (Section 323c of the Germany Penal Code provides that in the event of an accident, public danger or hardship, if assistance is required and the perpetrator can be expected to do so in the light of his circumstances, his omission to refuse to help may constitute the crime of failure to help in the face of danger, even if the perpetrator does not have a guarantor obligation to the victim.) )

However, the premise of denying the obligation of the guarantor of the former act is that the subsequent stabbing that cannot be justified by emergency defense did not jointly cause the deceased to die of excessive blood loss. However, this is only in line with ordinary everyday experience if the wound of the subsequent stab is very shallow and does not cause bleeding, because even if it were not for these wounds, the victim would have died a little later, according to which there is still a causal link between the subsequent stabbing and the deceased's death from excessive blood loss in this case.

Exceptions:

Section 34 of the Germany Penal Code and Section 904 of the German Civil Code are a different case for offensive emergency avoidance. Offensive emergency avoidance under § 904 of the Germany Civil Code derives from the obligation to compensate for damages, which includes an obligation to reduce damage. In order to protect the interests which are superior in principle, and thus to sacrifice the interests of unrelated third parties exceptionally, it is necessary to keep the sacrifice as minimal as possible. Section 34 of the Germany Penal Code makes it unlawful to take emergency refuge as a last resort to protect one's own life, body, liberty, reputation, property or other legal interests from an imminent danger. However, the provisions of this article can only be applied when the legal interests to be preserved and the degree of harm to be caused should be taken into account, and the legal interests to be preserved should be significantly greater than the legal interests to be harmed, and the act is really a last resort.

2. Guarantor obligations based on hazard supervision

Case 1: The obligation of the owner of a motor vehicle as a guarantor based on Section 7, paragraph 3 of the Germany Road Traffic Act [Barn Festival case]

(1) A brief summary of the case

The defendant and a friend who did not have a driver's license drove their own car to the barn festival together, and in order to drink to their heart's content, they agreed to spend the night in the car. Therefore, the defendant did not surrender his car keys. The two drank a lot of alcohol, the defendant fell asleep at the bar and his friend fell into a state of incapacity. With the help of other guests, he got the defendant into the car and himself got into the driver's seat to drive the car, causing a traffic accident due to drunkenness, which resulted in the death of a woman riding a bicycle. The defendant was completely unaware of the whole process and was unable to find out how his friend got the car keys, perhaps he simply took the keys out of the sleeping defendant's pocket.

(ii) Judgment of the Superior Court of Ham

The Upper Court of Ham affirmed the defendant's conviction for causing death by negligence. The obligation of the owner of a motor vehicle is based on section 7, paragraph 3, of the Germany Road Traffic Act as a guarantor, i.e. if the motor vehicle is used by another person other than the will and fault of the owner of the motor vehicle, such as by a thief after theft, the user is liable instead of the owner of the motor vehicle.

(3) Popper's view

The defendant in the case was guilty of negligence causing death by omission. Here's why:

What needs to be considered in this case is the obligation of a supervised guarantor to the source of danger, i.e., the motor vehicle. The motor vehicle is a source of danger and the danger itself is not permissible unless the driver or owner takes appropriate safety measures to avoid damage to others. Only the driver can take safety measures, while other traffic participants can unconditionally trust him to fulfill.

In principle, the guarantor's obligation does not include the need to take precautions to prevent others from obtaining the tools to commit crimes from their own sphere of control by infringing on their own proprietary rights. The only exception to this is that the object of disposal is something that citizens are ordinarily prohibited from possession, because the danger of committing a crime with the help of it is too great. Such items include, inter alia, firearms, toxic substances and, as defined in the Germany Narcotics Trade Act. A person who is in possession of a firearm based on a specific official permit will also be liable as a guarantor for a crime committed by another person using his or her own firearm if he does not take sufficient steps to ensure that the firearm is not obtained by another person. However, motor vehicles are not generally dangerous and their possession is not permitted on an exceptional basis only on the basis of special interests. Anyone can use and drive a motor vehicle, as long as he has the necessary driving ability and has proven it through a driving test. Therefore, taking measures to prevent a person who is incompetent or unfit from driving his or her own motor vehicle is not a guarantor obligation to prevent others from committing an intentional crime.

According to Popper, when another person has the obligation to supervise not only the car, but also the incapacitated actor, the other person can simultaneously or replace the actor as the guarantor to answer the responsibility, and only when the supervised person is in a subordinate position relative to another person and trusts in his care, the other person can establish a supervising guarantor. This supervisory guarantor status includes parents to their children and teachers to minor students. In this case, the fact that the defendant attended a beer festival with a friend and intended to get drunk there was not sufficient evidence that the two were in each other's position as supervising guarantors.

Case 2: The owner of the house as a guarantor [Drug Dealer Case]

(1) A brief summary of the case

The defendant took her boyfriend into his house and both were addicted to drugs. The boyfriend ordered two large doses of heroin to be sent to the address of the defendant's residence. He and the defendant smoked half of it together, and the other half was ready to trade in the residence. The defendant acquiesced to this because the boyfriend satisfied his drug needs and she could profit from the drug trade.

(2) Elaboration of views

The Federal Court reversed his conviction of aiding and abetting drug trafficking on the following grounds:

First, the defendant's lack of guarantor status excludes the punishability of omission as an accomplice, since the owner of the dwelling is essentially under no legal obligation to prevent a third person from committing the crime in his room. The only exception to this is that the dwelling, in addition to its own property as an external enclosed space, constitutes a source of danger by virtue of its own characteristics or condition, but this has not been ascertained in the present case. Secondly, although the enclosed nature of the dwelling would facilitate the commission of the crime, the dwelling itself is not a special source of danger and therefore the owner of the dwelling is not responsible for ensuring that nothing contrary to the law occurs in his dwelling. The owner of the dwelling should not be considered a quasi-auxiliary police officer while in his or her own dwelling. Finally, the Federal Court of Justice has made it clear that the participation of the owner of the dwelling in the distribution of the spoils of the crime, i.e. his own interest in the crime, does not undermine the above principle. On the other hand, the owner of the dwelling provides the dwelling to a non-owner to commit a crime, such as the production of drugs, counterfeiting of currency, or the custody of contraband. In general, this should be considered as a positive form of assistance.

Third, the guarantor's obligations arising from the commitment

Case 1: Wuppertal Air-Rail Train Accident Case

(1) A brief summary of the case

During the first run of the refurbished Wuppertal Air Rail train, the first train hit the steel frame left on the tracks and fell into the Wupper River, killing five passengers. There were a total of 4 steel frames at the accident site, and the construction commander asked workers W and I to dismantle the steel frames. After they dismantled the first two steel frames, workers L and S showed up and offered to help. W and I believe that L and S were also sent by the construction commander to dismantle the steel frame. Therefore, when the third steel frame was dismantled by himself, the fourth steel frame was handed over to them to dismantle. W left the construction site with I, L, and S, believing that L and S had removed the fourth steel frame.

(2) Judgments of state courts

The state court applied the principle of reliance to divide the uniform workflow into multiple areas of accountability, and accordingly held that the defendant's omission in breach of duty consisted only of being the last person to leave the work site and failing to confirm whether the fourth frame had been removed.

(3) Judgments of the Federal Court

The Federal Court held that the state court had neglected that, on the basis of the facts ascertained, each of the defendants, regardless of the division of the specific work steps, was obliged to prevent the danger to the public caused by the steel frame to be dismantled, and that they had breached their duty of care, thereby negligently causing the result within the meaning of sections 222 and 230 of the Germany Penal Code, and found that W and I had a guarantor obligation based on a promise and were therefore liable for the accident. Here's why:

First, the Federal Court held that in a unified work process, an effective division of labor is distributed among the different participants. If this division of labor is horizontal and there are no special rules requiring them to supervise each other, then the principle of trust can be applied to each participant, and everyone can trust that the other participants will complete their respective tasks, otherwise an effective division of labor cannot be established. L and S were at the same level as W and I in the company responsible for the construction, and W and I also believed that L and S were sent to dismantle the steel frame by the construction commander in charge of themselves. They can be confident that the construction commander has changed their assignment and given a portion of the work to L and S. However, the three commanders of the construction team were completely different in their accountability, because they did not fulfill their obligations and reconfirmed that there were no obstacles on the air-rail track before the completion ceremony, and the court found them guilty of negligence causing death by omission. Superiors, who are obliged to supervise and inspect the work of subordinate workers, certainly cannot assert the principle of trust.

Secondly, the Federal Court concluded by discussing the guarantor status of L and S, and it has not yet been ascertained whether they were sent by the commander or simply offered to help. In the former case, they are guarantors like W and I, which undoubtedly does not need to be further explored. But even in the latter case, where they were not delegated by the commander, the Federal Court affirmed their guarantor obligation on the following grounds: voluntary participation in unfinished work. If the joint undertaking of such obligations can be implicitly derived from guarantors such as defendants W and I, then they also fully assume the guarantor status through such undertaking. Because the helpers L and S perform a specific task, the other guarantors W and I can rely on the helper to participate responsibly in preventing the danger by performing a specific task. However, the obligation must be inherited from the guarantor.

Finally, in that case, W and I, although they were guarantors, did not have the authority to transfer their guarantor status to others. If I and W knew that L and S had not been dispatched by the construction commander, they could not consider that their guarantor obligations had been partially transferred to Gong and S. They must supervise their work, so that the guarantor obligations of L and S can only derive from dangerous acts that have violated the law, and they cannot undertake such fully accountable work without being dispatched by a commander. If they take on the work despite this, then by doing so, there is a danger that W and I, who are really obligated, will trust them.

Fourth, public officials act as guarantors

Case 1: The police's obligation to be a guarantor to prevent crime [Bistro Case]

(1) A brief summary of the case

The accused policeman went to the tavern to drink during the holidays, during which time he discovered that the tavern was suspected of organizing prostitution, but he did not take any measures to stop possible illegal prostitution and did not investigate the operator of the tavern.

There are two legal issues in this case: first, does the police have a duty of guarantor in principle to prevent the crime? Second, if the police have such a guarantor obligation, does the guarantor obligation extend to crimes discovered by the police officer while not on duty?

(2) Popper's view

In response to the first question, Popper argues that the State has an obligation to protect its citizens' rights from being violated by other citizens, and that it is this obligation of the State that the police fulfill. The question is only whether this obligation of protection by the State is a guarantor obligation.

Pavlik argues that the guarantor duty of the state and the police, as agents of the state, to deter crime within the scope of their duties, arises from the fact that citizens submit themselves to the state and its legal order in order to protect their own security. However, according to Popper, this only proves that citizens have the right to live in a largely peaceful social order, but it does not prove that citizens have the right to demand that their legal interests be protected from other citizens in individual cases. There is also no way for the State to fully meet this requirement. Moreover, before the crime is discovered, the police are neither the supervisory guarantor of the offender nor the protective guarantor of the victim. The detection of a crime by the police and thus the opportunity to stop it are mere incidents of chance and exceptions. In normal cases, it is first and foremost the responsibility of the citizens themselves to protect their legal interests from the wrongdoing of others. It is for this purpose that the right of emergency defence gives citizens the right to harm the legal interests of the infringer in exceptional circumstances.

In response to the second question: Popper argues that he no longer performs the obligations of the State on behalf of the State outside the performance of his duties or outside the jurisdiction of the police, and that there is no basis for proving the obligation of the guarantor, i.e. a legal obligation that has been elevated to the duty of the guarantor. The offence of failure to save danger under Article 323C of the Germany Penal Code is sufficient to guarantee the benefit of citizens in the event of imminent danger from the occasional presence of the police. To the extent that they are responsible for helping, the police must use their special abilities and legal possibilities.

Fifth, the guarantor's obligation and the risk of self-responsibility in drug abuse cases - GBL case

(1) A brief summary of the case

The defendant attended a drug party with others and gathered a crowd to take drugs. After everyone had drunk alcohol and consumed different kinds of drugs, the defendant brought out an undiluted bottle of y-butyrolactone (hereinafter abbreviated as GBL) to everyone. However, he also reminded everyone that because GBL can be transformed into a hallucinogenic substance after inhalation, it is not necessary to smoke this substance undiluted, and even if it is diluted, it can only be smoked in small doses. But one of the guests immediately took the bottle and poured it into his mouth a few times. When the guest was unconscious, the defendant lay him flat on his side and did not call an ambulance after the unconscious person's breathing rate became slower. If the defendant called an ambulance in time, there was still a possibility of rescuing the unconscious guest. By the time the defendant was ready to do so, it was too late.

(2) Federal court judgments

The Federal Court held that the deceased was self-reproached and put his life in danger, but affirmed the defendant's conviction for the charge of intentional homicide. A self-liability based on self-entrapment may exclude the provider's liability for damage caused by the user, as long as the provider of the hazardous substance is only involved in the self-entrapment of the user and does not create a danger to another person (the user of the hazardous substance) with consent. The Federal Court held that the GBL provider was liable for the user's death because the risk of the user's self-responsibility was realized.

(3) Popper's view

The defendant's act of providing highly hazardous GBL to guests constituted an impermissible danger to the guests because the guests were already under the influence of alcohol and other drugs and were incapable of properly assessing the dangers of smoking undiluted GBL. Accordingly, since the person who is in danger is already in a state of intoxication, it can be inferred from this that the defendant who may also be in a state of intoxication and who provides him with the means to be in danger has some kind of duty of care and protection.

03

The reader thinks

From the perspective of the development history of Germany's criminal law theory, due to the great defects of the formal dichotomy, formal trichotomy and formal quadrangle, the formal legal deontal theory has lost universal support and is in a comprehensive decline in the contemporary Germany criminal law academic circles. At the same time, the doctrine of guarantor status in contemporary Germany is basically in the camp of substantive legal deontology. The traditional criminal law theory of the mainland is derived from the criminal law of the Soviet Union, and in the theory of criminal law of the Chinese and Soviet Unions, there were no concepts such as "guarantor", "guarantor status" and "guarantor obligation". However, with the in-depth development of reform and opening up, academic exchanges between China and Germany in criminal law have become more and more frequent.

In the theoretical research of the mainland, there are many schools of thought in China on the construction and classification of the status of the guarantor of impure omission, and the theories of the academic circles as the source of obligations are divided into the theory of form as obligation, the theory of substance as obligation, and the theory of obligation combining form and substance. Among them, the mainland's doctrine on form as an obligation mainly includes the three-source theory, the four-source theory, and the five-source theory. The commonality of the three-source, four-source, and five-source theories as obligations lies in the fact that they all assert that legal provisions, the requirements of the position or business, and one's own prior acts are all sources of obligations, and the difference between the three lies in whether they assert that legal acts, public order, and social morality can be the sources of obligations. The difference between the Chinese form as deontology and the Germany form as deontology is that it is still the mainstream theory in academic circles and still stands today. The theory of form as deontology not only has a far-reaching and continuous inertial influence on the judicial practice of the mainland, but also remains the position advocated by the national criminal law textbooks in the mainland. However, there is a clear flaw in finding the source of the obligation of act that is not committed by an impure omission purely at the formal level. As a result, people began to change their perspectives, starting from the special relationship between the person of inaction and the victim, or the relationship between the person of omission and the result of the infringement of legal interests, to explore the basis for the occurrence of obligations, which is called "substantive deontology of acts". Among them, the representative views include: the theory of dominant behavior, the theory of exclusive domination, and the theory of antecedent behavior. Both the theory of form as an obligation and the theory of substance as an obligation have problems that cannot be solved by their own theories, and it seems that the "hostile" relationship between the two requires us to choose one or the other as the theoretical basis for the source of the obligation. However, in addition to these two theories, mainland scholars have started from a new perspective, that is, to seek the combination of formal theory and substantive theory, and have launched a new discussion on the theoretical basis of obligation. Although form as deontology is still a firm position in national criminal law textbooks, the combination of various reformist theories has also promoted a smooth transition from form as deontology to substance as deontology in the process of pursuing the mean, and the more thorough substance as deontology has also won the clear support of many Chinese criminal law scholars, and has become "the main force of substance as deontology as a general theory". Taking the history of the development of criminal law in Germany as a reference, as far as the development trend of Chinese criminal law is concerned, the author believes that essence as deontology will become the general trend.

Producer: Zhang Yongjiang

Author: Xiong Yuanyuan, 2023 master's degree student in criminal law, Xiangtan University Law School

Editor: He Siyu

Editor-in-charge: Xu Yuanyuan

Review: Wu Xia

Hunan Provincial Criminal Rule of Law Research Association

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