Concept and Nature of the Criminal Act
The criminal act is a central element in German criminal law and refers to the conduct of a person required by the offense under the law. It forms the link between the perpetrator’s internal will (intent or negligence) and the externally apparent legally relevant behavior. In principle, criminal liability cannot be established without a criminal act. The precise definition and structure of the criminal act have been differentiated multiple times in academic theory and jurisprudence, encompassing various forms and qualities of actions.
Systematic Classification
The Criminal Act in the Structure of a Criminal Offense
In German criminal law, the examination of a criminal offense is generally conducted in three steps: statutory elements, unlawfulness, and guilt. The criminal act is part of the first step, known as the statutory element (Tatbestandsmäßigkeit). This means that a criminal act is a fundamental prerequisite for the existence of a criminal offense, and its presence must first be established objectively.
Action Constituting a Criminal Offense
An action constitutes a criminal offense if it fulfills the characteristics described in the relevant legislation. The criminal act can take various forms, such as active conduct or omission.
Definition and Theories of Action
Definition of Action
The concept of action is not defined by law in German criminal law, but has been developed through case law and academic literature. In general, an action is understood as any socially significant conduct that is controlled or controllable by will. Different theories are distinguished concerning the determination of the concept of action:
Causal Theory of Action
According to the causal theory of action, every bodily movement set in motion by the will is a criminal act. The decisive factor is the physical act, regardless of its aim or purpose.
Teleological (Final) Theory of Action
The teleological (final) theory of action expands the concept to include purposeful behavior. Thus, a criminal act occurs when the bodily movement is directed toward a goal. Pure reflex actions or physically compelled movements are therefore not regarded as actions in the criminal law sense.
Social Theory of Action
This theory focuses on the social significance of the behavior. Accordingly, a criminal act is any socially significant, controllable behavior that can be legally evaluated.
Forms of the Criminal Act
Commission by Active Conduct
The most common form of criminal act is active conduct. This refers to positive behavior, such as stealing an object (§ 242 StGB) or causing bodily harm (§ 223 StGB) by a targeted blow.
Commission by Omission
In addition to active conduct, criminal law also recognizes punishable omission (§ 13 StGB). This means that a person is also liable if they fail to perform a required action, even though they were objectively and subjectively under a legal duty to act. A classic example is failure to provide help at an accident when a position of guarantor exists.
True and False Omissions
A true omission offense is directly punishable under the law (e.g., failure to render assistance, § 323c StGB). A false omission offense arises from the violation of a specific duty (guarantor obligation), such as in parental care.
Special Issues and Distinctions
Unity and Multiplicity of Acts
When multiple acts are involved, it is necessary to determine whether one or more criminal offenses exist (unity of act versus multiplicity of acts). In this context, particular attention is paid to natural and legal unities of action (continuous sequences of events, multiple statutory acts).
Distinction from Mere Passivity
Not every consequence prohibited by criminal law can be attributed to a person as a criminal act. Pure accidents and processes governed by natural laws without human intervention are not criminal acts.
Objective and Subjective Criminal Act
Objective Elements of Offense
Objectively, an action as external behavior must be present that results in or typically leads to the success element of the offense, if the objective element of a crime requires it.
Subjective Elements of Offense
The subjective side of the criminal act includes the perpetrator’s knowledge and will regarding their action and its statutory consequences (intent, conditional intent, negligence).
Criminal Act in the Specific Part of Criminal Law
Conduct Offense
Conduct offenses only require certain behavior, without the occurrence of a result (e.g., driving under the influence, § 316 StGB).
Result Offense
In result offenses, in addition to the act, a specific result is required, for example, in homicide (§ 212 StGB, result: death of a person).
Criminal Act in the Context of Attempted Offenses
The question of when a criminal act reaches the stage of a punishable attempt (§ 22 StGB) is particularly relevant when distinguishing between non-punishable preparation and punishable attempt. The attempt begins when the criminal act immediately sets about fulfilling the offense’s statutory elements.
Relevance in Other Areas of Law
The concept of action is also applied in other areas of law, such as administrative offenses or civil law, but always within the context of the specific regulations.
Summary
The criminal act is the core of every assessment of criminal liability in German criminal law. It is the external, will-controlled behavior that fulfills a statutory offense or at least calls it into question. Its exact definition, distinction from other behaviors, statutory formulation, and socio-ethical evaluation are central questions in the application and science of criminal law.
Frequently Asked Questions
What role does the distinction between commission and omission play in the criminal act?
The distinction between commission and omission is of central importance in criminal law, because different requirements for criminal liability depend on it. While an actively acting perpetrator fulfills a statutory offense through positive conduct, liability for omission according to § 13 StGB requires the existence of a guarantor position. Classifying conduct as active behavior or as omission is often problematic, particularly in so-called improper omission offenses, where the failure to act is criminally relevant. The decisive factor here is whether the perpetrator failed to perform a reasonable and legally required action, even though this could have prevented the success element of the offense. The distinction is made according to the focus of culpability: if the perpetrator can be reproached for realizing a risk through active conduct, it is an act; whereas pure passivity constitutes an omission.
How is the relationship between criminal act and causality to be understood?
The criminal act is always linked to the examination of causality, as only behavior that is causal for the success element of the offense can be legally relevant. Within the framework of objective imputation, it must be examined whether the perpetrator’s action cannot be omitted according to the so-called “conditio-sine-qua-non” formula without the success ceasing to exist. Where several possible causes exist, it must be determined whether each individual act was causative for the result, or if another cause was predominant or decisive. Only if there is a close causal link between the criminal act and the statutory result does criminal liability arise. Moreover, in the context of objective imputation, atypical courses of causation or self-endangerment by third parties are also excluded.
To what extent must the criminal act be distinguished from control over the act (Tatherrschaft)?
The criminal act refers to the external conduct satisfying the statutory elements, whereas control over the act (Tatherrschaft) refers to holding the course of events in one’s hands with intent. Tatherrschaft serves as the principal distinguishing criterion between perpetration and participation. A perpetrator has Tatherrschaft if he controls the essential aspects of the event, for example by initiating or directing the crucial processes. The criminal act can be carried out both by the perpetrator with Tatherrschaft and by a mere participant (instigator or accomplice), with the latter merely promoting or influencing the crime without decisively controlling it. Strict doctrinal separation of these terms is particularly significant in the context of joint perpetration (§ 25 (2) StGB) and indirect perpetration (§ 25 (1) Alt. 2 StGB).
Are there special requirements for specifying the criminal act in an indictment?
When drafting an indictment under § 200 StPO, the criminal act must be specified and described in such detail that the defendant can recognize which specific action is being attributed to them. This requires a precise statement of the time, place, and essential external circumstances of the offense. General or vague descriptions that do not sufficiently capture the individual conduct do not meet the standards of legal certainty. Specification is also essential because it enables later decisions on judgment and, if necessary, the assessment of whether the same matter has already been legally adjudicated (ne bis in idem). Particular attention is required in continuing offenses or cases with multiple participants, where attribution of individual parts of the act and their legal evaluation can become complex.
In which cases is a so-called “neutral” criminal act punishable?
A so-called “neutral” criminal act refers to conduct that is generally socially acceptable and legally permitted, such as selling a knife to a customer. Such conduct only becomes punishable if the actor positively knows that their participation is intentionally integrated into a criminal offense (so-called “chain transactions”), or if the conduct becomes clearly legally relevant due to the circumstances. Jurisprudence distinguishes between actions typical for a particular profession and actions with so-called “criminal act quality”. If the conduct crosses the threshold of mere social adequacy—because the actor knowingly and intentionally makes themselves available to promote an unlawful act, or even creates a “focus of danger”—punishability as complicity (§ 27 StGB) may be established. Decisive are always knowledge of and intent to contribute to the result.
How does the legal system deal with multi-act criminal conduct?
Multi-act criminal conduct, i.e., actions composed of several individual acts, becomes particularly relevant in the case of composite or continuing crimes. The key question is when there is a single act and when several independent acts exist. The decisive factor is the so-called natural unity of action, which means that several partial acts are considered a single crime if they are based on a single intention and are closely connected in terms of time and place. It is different in the case of multiple offenses (§ 53 StGB), where there are clear breaks between individual acts or divergent protective purposes are affected. Precise distinction is significantly important for sentencing, in particular for determining the sentence and whether sentencing ranges are shifted.
To what extent can an automated action, for example by machines or software, be regarded as a criminal act?
For automated actions triggered by machines or computer programs, the criminal act is generally attributed to the person who operates, controls, or programmed the automated system. In legal terms, the causative act—that is, the initiation or conscious control of the respective system—is qualified as the criminal act. An example is the commission of computer crimes through the use of malware (e.g., Trojans, viruses), where the perpetrator’s contribution lies in releasing or programming the software. The complex issue of attribution of such acts is becoming increasingly relevant in times of growing digitalization and autonomous systems; ultimately, it is decisive whether and to what extent human behavior determined the control and supervision of the act, so that attribution in the sense of perpetration is given.
