Definition and Fundamentals of Criminal Guilt Law
Criminal guilt law constitutes a central area within German criminal law. It refers to the legal field that deals with a person’s criminal responsibility based on their capacity for guilt as well as individual blame in sentencing. The core question is to what extent a factual and unlawful act can be personally attributed to the perpetrator and thus charged under criminal law. Guilt functions as the central criterion for imposing punishment and distinguishes criminal law from other sanctions and legal consequences.
Systematics of the Principle of Guilt
Historical Development
The development of criminal guilt law is closely tied to the principle of guilt. Historically, in the Middle Ages, the law of consequences prevailed, where the actual results of an act were decisive. Only with the Enlightenment and the development of modern criminal law did the guilt principle emerge: punishment may only be imposed if there is individual blame. This principle protects individual freedom and prevents collective or kin liability.
The Principle of Guilt in German Law
The principle of guilt is today an indispensable foundation of German criminal law (Art. 20(3) GG, § 46 StGB). It dictates that no one may be punished without personal guilt (‘nulla poena sine culpa’). This constitutionally guaranteed principle requires that a perpetrator can only be held criminally responsible if they had the capacity to comprehend the wrongdoing of their act and to act in accordance with this understanding.
Structure and Elements of Criminal Guilt Law
Capacity for Guilt
In criminal guilt law, criminal capacity is a central element of the offense. It describes the ability to recognize the wrongdoing of an act and to act according to this insight (§ 20 StGB). The absence of criminal capacity leads to exemption from punishment:
- Absolute Incapacity for Criminal Responsibility: Children under 14 years of age are generally incapable of guilt according to § 19 StGB.
- Limited Criminal Capacity: In cases of mental or psychological disorders, such as pathological disturbance, mental deficiency, or severe disturbance of consciousness, criminal capacity under § 20 StGB may be excluded. In cases of diminished criminal capacity under § 21 StGB, the punishment must be reduced.
Forms of Guilt
In the narrower sense, criminal guilt law distinguishes various forms of guilt:
- Intentional Guilt: Exists when the perpetrator acts knowingly and willingly, and is aware of the wrongfulness of their act.
- Negligent Guilt: Occurs when the perpetrator fails to exercise the necessary care and acts negligently, without having intended the result.
Grounds Excluding or Excusing Guilt
Criminal guilt law recognizes grounds that exclude guilt, which remove personal blameworthiness for an act:
- Grounds Excluding Guilt: In particular, the cases regulated in § 20 StGB concerning incapacity for guilt due to mental or psychological disorders.
- Excusing Grounds: For example, necessity under § 35 StGB, where actions are taken in an excusable emergency in the face of danger to the life, body, or liberty of a close relative.
Law of Error
A significant aspect of criminal guilt law is the law of error. It is important to distinguish between:
- Error of Prohibition (§ 17 StGB): The perpetrator is aware of the act but does not recognize its unlawfulness. The error is only excusable if it was unavoidable.
- Error of Permission: The perpetrator mistakenly believes that there is a ground for justification.
Guilt in Criminal Proceedings
Offense-Related and Offender-Related Guilt
Guilt not only assesses the act itself but also the personality and motives of the perpetrator. In criminal proceedings, individual guilt is considered in a differentiated manner; factors such as motivation, capacity for action, and developmental history are taken into account during sentencing.
Exemption from Punishment and Sentencing
If guilt is absent, punishment is excluded (§ 46 StGB). If guilt is minor, it can lead to a reduced sentence or even to suspension of the sentence on probation. The question of guilt is therefore regularly a central topic of the main hearing in trial proceedings.
Distinction from Other Legal Institutions
Criminal Law Principle of Guilt versus Civil Law Liability
The principle of guilt in criminal law must be distinguished from civil liability, where objective facts, such as strict liability, can also lead to responsibility. Unlike in criminal law, personal fault is not required here.
Relationship to Measures of Rehabilitation and Security
If criminal capacity is abolished or diminished, so-called measures of rehabilitation and security (§§ 63 ff. StGB) replace the punishment, such as confinement in a psychiatric hospital or a detoxification facility.
Significance and Criticism of Criminal Guilt Law
Criminal guilt law is regarded as one of the most important achievements in the development of humanitarian criminal law. It serves to protect human dignity and the rule of law by basing punishment only on individual culpability. However, exceptions to criminal capacity or the application of guilt rules to new offense types—such as automated systems or collective offenses—are subjects of critical discussion in the literature.
International References and Outlook
The principle of guilt and criminal guilt law are also found in most other European and international criminal law systems. In supranational legal systems such as the European Convention on Human Rights (ECHR), the principle of guilt is anchored in Art. 6 ECHR. Ongoing digitalization and social changes raise new questions, such as with regard to capacity for guilt in cybercrime, artificial intelligence, or complex organizational offenses.
References
- Claus Roxin: Criminal Law. General Part.
- Thomas Fischer: Criminal Code and Supplementary Laws.
- Wolfgang Joecks: Study Commentary on the Criminal Code.
This encyclopedia entry provides a comprehensive overview of the legal structures, doctrinal understanding, and practice-relevant aspects of criminal guilt law and underscores its significance in the modern criminal law system.
Frequently Asked Questions
When is mitigation of punishment possible under criminal guilt law?
Mitigation of punishment in criminal guilt law is considered when certain legally defined or recognized mitigating factors exist that reduce the individual’s culpability. These include, among others, the existence of less serious cases, grounds excluding guilt or excusing grounds such as diminished capacity (§ 21 StGB), active remorse, punishability of attempts in failed attempts (§ 23(2) StGB), or significant provocation of the perpetrator. In sentencing, the court also considers circumstances such as confession, remorse, restitution, or a minor interest in the offense. Concrete mitigation of punishment is based on statutory provisions, for example, by applying a reduced sentencing range pursuant to §§ 49 ff. StGB. The decisive factor is always a comprehensive assessment of the individual characteristics of the act and the perpetrator, as well as the special circumstances of the individual case.
How is incapacity for guilt determined and what are its consequences in criminal proceedings?
Incapacity for guilt under § 20 StGB exists when, at the time of the offense, the perpetrator is unable, due to a pathological mental disorder, profound disturbance of consciousness, mental deficiency, or another serious mental abnormality, to understand the wrongdoing of the act or to act according to that understanding. Determination typically occurs via psychiatric expert opinions that assess the accused’s capacity for insight and control at the time of the offense. If incapacity for guilt is determined, punishment is excluded. The court will issue an acquittal but may, if significant danger to others persists, order security measures such as confinement in a psychiatric hospital (§ 63 StGB).
What role does the principle of wrongdoing and guilt play in criminal law?
The principle of wrongdoing refers to the necessity that a punishable act represents a socially undesirable behavior (wrongdoing) that is prohibited by criminal norms. Additionally, the guilt principle requires that punishment is only permissible if the perpetrator can personally be blamed. The principle of guilt (nulla poena sine culpa) is a fundamental foundation of German criminal law and limits state prosecution. The result is that punishment may only be imposed if the perpetrator could recognize the wrongdoing of the act and act according to this insight, and if no grounds excluding or excusing guilt are present. Both principles are committed to the principle of proportionality and respect for human dignity.
To what extent must minor or adolescent offenders be treated differently under criminal guilt law?
In the area of criminal guilt law, juvenile offenders are treated specially. According to German law, children under 14 are incapable of guilt (§ 19 StGB) and cannot be held criminally responsible. For adolescents (14 to 17 years), the Juvenile Court Act (JGG) applies, which prioritizes educational measures and assesses guilt within an educational criminal law framework. For young adults (18 to 20 years), juvenile criminal law can be applied under § 105 JGG, provided that their moral and intellectual development still corresponds to that of a juvenile, or if the offense is typical of juveniles. The question of guilt in minors and young adults is always examined with special attention to their personal maturity and development.
What is the significance of the subjective element of the offense for criminal liability?
The subjective element of the offense—consisting of intent or negligence, as well as special subjective elements such as purpose, attitude, or motives—is central to criminal liability. Individual blameworthiness for actions or omissions is linked to whether the perpetrator acted intentionally or negligently and to what extent the perpetrator realized the subjective attitude toward the offense required by law. If the required intent is absent in a crime of intent, guilt and thus criminal liability do not exist. Special subjective elements, such as murder characteristics (e.g., base motives), can result in harsher punishment or are prerequisites for a more serious offense. Determining the subjective side of the offense is done by judicial evaluation of evidence, taking into account all ascertainable circumstances.
How do errors of prohibition and errors of permission affect the perpetrator’s guilt?
An error of prohibition exists if, at the time of the act, the perpetrator does not know they are doing wrong because they failed to recognize the prohibition of the conduct (§ 17 StGB). If the error was unavoidable, guilt is excluded; if it was avoidable, the court may mitigate the punishment. An error of permission occurs when the perpetrator believes they are authorized to carry out the act, i.e., erroneously assumes a justifying situation (§ 17, ‘indirect error of prohibition’). Here as well: if the error was unavoidable, guilt is excluded; if it was avoidable, as with a direct error of prohibition, there may be mitigation of punishment. What is decisive is whether, given the perpetrator’s personal abilities and the concrete context, it could reasonably be expected that they would recognize the wrongfulness.
