Definition and Classification of Conduct Offenses
Das Conduct Offense is a central term in German criminal law and describes a group of criminal offenses whose criminal sanction is connected exclusively or primarily to the performance of specific behavior (i.e., an act), regardless of whether a concrete result occurs as a consequence of the act. In contrast to result offenses, where the occurrence of a specific result described by the offense is a prerequisite for criminal liability, with a conduct offense, the act itself is punishable.
Conduct offenses play a key role in shaping criminal liability and are used particularly in most provisions designed to protect public order, safety, and the legal system.
Distinction and Systematics
Conduct Offense vs. Result Offense
Conduct offenses differ from so-called result offenses in that, for the fulfillment of the offense, the occurrence of a result is not required—only the behavior described by the criminal statute is necessary. In result offenses—such as manslaughter (§ 212 StGB) or criminal damage (§ 303 StGB)—the occurrence of a specific result is required in addition to the act. In contrast, conduct offenses are complete upon carrying out the act that meets the statutory offense.
Examples of conduct offenses:
- Perjury in court (§ 153 StGB)
- Driving under the influence (§ 316 StGB)
- Trespassing (§ 123 StGB)
Examples of result offenses:
- Assault (§ 223 StGB)
- Theft (§ 242 StGB)
- Manslaughter (§ 212 StGB)
Conduct Offense and Omission Offense
In addition to the term conduct offense, German criminal law also includes omission offenses, in which the mere failure to perform a required legal act constitutes the offense. However, a strict distinction is not always possible; in so-called improper omission offenses there is a duty to act, the non-compliance with which results in a sanction.
Manifestations and Significance
True Conduct Offense
A true conduct offense is characterized by the fact that the mere performance of the prohibited act is sufficient for completion of the crime. A result beyond the act itself is neither required nor, where applicable, even described in the offense.
Example: § 316 StGB prohibits driving a vehicle on public roads under the influence of alcohol. Here, the act of driving is sufficient—a concrete result, such as endangerment, does not need to occur.
Conduct Offense with Result Qualification
Sometimes, conduct offenses contain factors qualifying a result, where the occurrence of a particular result—such as a serious consequence—results in a more severe penalty or a qualification of the offense. However, the basic offense remains the performance of the act itself.
Conduct Offense and Attempt
Because in conduct offenses the statutory result is achieved with the execution of the act, criminal liability for attempt ends with the completion of the activity. Attempt is generally only possible in conduct offenses if there is an immediate commencement of the criminal activity.
Dogmatic Classification in Criminal Law
Fulfilling the Offense and Completion
In a conduct offense, the statutory requirements consist solely of certain behavior. The completion of the offense is given as soon as the required act is finished. A further result is neither presumed nor required.
Unlawfulness and Guilt
As with every criminal offense, in the case of a conduct offense, the act must also be unlawful and culpable. Particularly, grounds for justification such as self-defense or consent can also exclude liability for conduct offenses.
Attempt and Withdrawal
Since conduct offenses are completed with the conclusion of the act, criminal attempt generally exists only if the act has been commenced but not completed. Opportunities for penalty-free withdrawal are therefore significantly limited.
Concurrence of Offenses
When conduct offenses coincide with other offenses, especially with result offenses, different forms of concurrence can arise (for example, concurrent offenses or multiple offenses). What is often decisive is whether the conduct offense already independently constitutes an injustice requiring punishment.
Practical Relevance
Scope of Criminal Liability and Areas of Application
Conduct offenses are of great practical importance, as they enable legislative interests to be effectively enforced and sanction certain socially undesirable behaviors solely owing to their dangerousness or disorderliness. They play a central role, particularly in traffic offenses, offenses against public order, and protection of the state’s legal order.
Difficulties in Distinction
Especially in practice, the precise distinction between conduct and result offenses can be problematic— with so-called “abstract endangerment offenses,” for example, the boundary is often blurred. The classification has dogmatic and procedural relevance, for example regarding attempt, joint perpetratorship, and participation.
Significance for Interpretation and Application of Criminal Provisions
Correct classification of an offense as a conduct offense has far-reaching effects on the interpretation of prerequisites for criminal liability, on the possibility of attempt and withdrawal, as well as when examining forms of participation. Especially when creating new criminal statutes, determining whether a conduct offense or a result offense is to be established is of great significance for the scope of criminal sanctions.
Summary Assessment
The conduct offense is a fundamental category in German criminal law, allowing behavior to be sanctioned at the level of the act itself without reference to a specific result. By clearly distinguishing it from result and omission offenses, the concept contributes to the enforcement of preventive criminal objectives, as well as the protection of essential legal interests and social order. The dogmatic separation and precise classification have significant consequences for liability and the interpretation of criminal provisions.
Frequently Asked Questions
When is attempt punishable in the case of a conduct offense?
In a conduct offense, attempt is generally punishable only if the law explicitly makes attempt a crime. The key factor is that, under the statutory offense, a conduct offense targets a particular action or omission, not a result. Attempted liability requires that, according to the perpetrator’s conception of the offense, there is immediate commencement of execution (§ 22 StGB). Because conduct offenses do not require a result—unlike result offenses—commencement is established as soon as the perpetrator visibly manifests determination to commit the offense and the protected legal interest is specifically endangered. An example is forgery of a document (§ 267 StGB): As soon as the perpetrator creates a false document, the offense is usually already completed. The distinction between attempt and completion is therefore very narrow in conduct offenses, requiring careful examination in legal practice.
How does a conduct offense differ from a result offense with regard to the objective elements of the offense?
The fundamental distinguishing feature between a conduct offense and a result offense lies in the objective elements of the offense. While a result offense requires the occurrence of a specific result described by the law (e.g., the death of a person in the case of manslaughter, § 212 StGB), in a conduct offense, the mere performance of an act or omission defined by statute as prohibited is sufficient. In a conduct offense, it is irrelevant whether a result—such as damage—occurs or not. The offense is complete as soon as the act matching the statutory definition is performed, e.g., in the case of trespass (§ 123 StGB), when entering another person’s dwelling against the will of the authorized person. Thus, examination of the objective elements of a conduct offense is focused primarily on the act itself.
What is the significance of withdrawal in conduct offenses?
The perpetrator’s right of withdrawal under § 24 StGB is restricted in conduct offenses due to the close connection between the act and its completion. Since, in a conduct offense, the requisite result generally occurs with the act or omission, there is almost no room for crime-free withdrawal in the classic sense. A withdrawal can—if at all—only be effective if the prohibited act has not yet been completed or the perpetrator refrains from further execution before crossing the threshold to the prohibited act. In most instances, after completion of the act that matches the statutory offense, withdrawal is excluded, so that the legal institution of withdrawal is practically relevant mainly for result offenses.
What role does the subjective element of the offense play in conduct offenses?
Even in conduct offenses, the subjective element—usually intent—is an essential prerequisite for criminal liability. The perpetrator must perform the act described by the offense with knowledge and will. Some conduct offenses also require special subjective elements, such as purpose, intent to enrich, or motives (e.g., in the case of trespass, the intent to gain unauthorized access for oneself or a third party). The subjective element ensures that only those are punished who intentionally performed the act described in the offense.
What is the effect of a missing result in conduct offenses on criminal liability?
By definition, conduct offenses are not dependent upon the occurrence of a result. This means that the absence of a result generally has no effect on criminal liability. Liability depends solely on whether the statutorily described act (or omission) has been carried out. For example, a person driving without a license (§ 21 StVG) is already criminally liable simply for operating a motor vehicle without a license on public roads, regardless of whether actual endangerment or an accident occurs.
Are there atypical special forms of conduct offenses in criminal law?
In addition to true conduct offenses, in which only the performance or omission of an act fulfills the offense, there also exist so-called “abstract endangerment offenses,” which, though formally structured as conduct offenses, typically aim at preventing possible dangers. An example is the prohibition on driving a vehicle under the influence of alcohol (§ 316 StGB). Although a concrete result (e.g., accident or injury) is not a requirement of the offense, the purpose of the criminal norm is nevertheless to prevent potential harm. Thus, in interpreting conduct offenses, it is necessary to consider the specific protected interests and legislative objectives in each case.
How is liability for negligence regulated in the context of conduct offenses?
Conduct offenses are usually structured as intentional offenses. Sanctioning negligent conduct is only possible if explicitly stipulated by law. In certain conduct offenses, the legislature may establish a negligent form of commission, e.g., negligent bodily injury (§ 229 StGB). In other conduct offenses where no explicit provision exists, liability for mere negligence is excluded. A careful examination of the statutory regulation is therefore essential in order to assess liability for negligent behavior.
