Concept and Significance of a Criminal Offense
A criminal offense is a central concept in criminal law and refers to conduct that fulfills the elements of a criminal statute, is unlawful, and is carried out culpably. The criminal offense is a prerequisite for the imposition of a criminal sanction and forms the basis for an individual’s criminal liability. It is specified in the Criminal Code (StGB) and other special statutory provisions; depending on the legal system and national regulations, its definition and scope may vary.
General requirements of a criminal offense
Factual elements of the offense
An act is first considered to fulfill the factual elements if it corresponds to the statutory criminal offense, that is, all objective and subjective elements of the relevant criminal statute are present.
Objective elements of the offense
This refers to the external features of the offense, such as the act itself, its consequences, and special circumstances (for example, in theft: taking away someone else’s movable property).
Subjective elements of the offense
The subjective element encompasses the internal conditions, such as intent or negligence. Some offenses require specific motives or intents, such as greed or base motives.
Unlawfulness
The fulfillment of the criminal statutory elements generally causes an act to be deemed unlawful. However, unlawfulness may be excluded by justification grounds, such as self-defense (§ 32 StGB) or justified necessity (§ 34 StGB).
Culpability
In addition to the constituent elements and unlawfulness, criminal law requires culpability. The perpetrator must have committed the wrongdoing in a personally blameworthy manner, in particular being able to control their actions and lacking grounds that exclude culpability (e.g., mistake of prohibition, lack of criminal capacity).
Forms of criminal offenses
Intentional and negligent acts
Criminal offenses can be committed either intentionally or negligently. Intent means knowing and willing to realize the statutory elements of the offense, while negligence means neglecting the diligence required in ordinary transactions.
Acts of commission and omission offenses
Criminal offenses can be committed by an active act (commission offense) or by omitting a required action (omission offense). In cases of omission, the law ordinarily requires the existence of a guarantor position.
Attempt and completion
Not only completed criminal offenses may be punished. The attempt to realize the statutory elements of an offense is also punishable in many cases, provided the perpetrator has begun to act towards the offense and has not (yet) brought about the result.
Co-perpetration and participation
Criminal law distinguishes between perpetrators, co-perpetrators, and participants (instigators, accomplices). This means that participation in the act can also be considered a criminal offense.
Distinctions and related terms
Criminal offense vs. Regulatory offense
In contrast to a criminal offense, a regulatory offense (e.g., traffic violations, fines) does not constitute a wrongdoing prosecuted under criminal law, but merely a legal violation subject to an administrative measure.
Felonies and misdemeanors
The Criminal Code differentiates felonies (minimum penalty: imprisonment for one year) from misdemeanors (lower minimum penalty), §§ 12 et seq. StGB.
Criminal offense in the course of criminal proceedings
Preliminary investigation
If there is suspicion of a criminal offense, investigative authorities (public prosecutor’s office, police) initiate investigations to determine whether a criminal offense has actually occurred.
Indictment and main proceedings
If there is sufficient suspicion, the public prosecutor brings charges, after which a main trial is held in court to determine guilt.
Sentencing and sanctions
If a criminal offense is established and criminal liability exists, the law provides for various sanctions, such as imprisonment, fines, or ancillary penalties.
Criminal offense in international comparison
The legal structure of a criminal offense is subject to the national legislature in each case. International law, for example in cases of grave human rights violations, also enables the prosecution of criminal offenses globally (such as under the Rome Statute of the International Criminal Court).
Significance and function of criminal offenses in the legal system
The criminal offense is the core element of every criminal law system and fulfills key functions in societal life. It serves to enforce the state’s right to punish, protect fundamental legal interests such as life, liberty, and property, and contributes to both general and specific prevention.
Summary: The criminal offense is an act that fulfills the statutory elements, is unlawful and culpable, and its prosecution serves to safeguard the legal order. The form, extent, and legal treatment are governed by the respective criminal code and are continuously developed by case law and legislation.
Frequently asked questions
Who is legally responsible for a criminal offense?
In principle, the person responsible for a criminal offense is the one who fulfills the elements of a criminal statute, either intentionally or negligently, and acts culpably. German criminal law distinguishes between principal perpetration and participation. A perpetrator is someone who commits the act directly or through another person (§ 25 StGB), while participants—instigators (§ 26 StGB) or accomplices (§ 27 StGB)—can also be held responsible even if they do not carry out the act themselves. Criminal capacity plays a key role: under § 19 StGB, children under 14 are not criminally responsible at all. Between the ages of 14 and 18, juvenile criminal law applies, which pursues an educational approach (§ 1 JGG). Legal entities such as companies are not directly criminally liable under German law; however, their management or employees may be personally held accountable. Regarding culpability, particular circumstances such as incapacity due to mental disorders must also be considered (cf. § 20 StGB).
What legal consequences result from a criminal offense?
The legal consequences of a criminal offense depend primarily on the relevant criminal statute and the penalties provided by law. These may be fines, imprisonment, or, in the case of juveniles, educational measures, disciplinary means, or juvenile detention. In addition to the main penalty, the court may also order supplemental sanctions, such as a driving ban, occupational ban, or confiscation of items used in the offense (§§ 44-52 StGB). Furthermore, criminal offenses may have civil law consequences, such as claims for damages or compensation for pain and suffering. In certain cases, notification of professional chambers or other authorities may lead to disciplinary or professional sanctions. Consequences for the criminal record (certificate of conduct) should also not be overlooked.
How does the law distinguish between intent and negligence in criminal offenses?
Criminal law fundamentally distinguishes between intentional and negligent acts. Intent means that the perpetrator commits the act knowingly and willingly, i.e., deliberately seeks to fulfill the elements of the offense. As a rule, every criminal offense requires at least conditional intent unless the law provides otherwise. Negligence is present when the perpetrator neglects the duty of care required in traffic and thus fulfills the elements without intending it, although the consequences could have been foreseen and avoided (§ 15 StGB). Negligent acts are only punishable if the law expressly provides for them, as is the case with certain offenses such as bodily injury (§ 229 StGB) or homicide (§ 222 StGB).
Can a criminal offense also be committed by omission?
Yes, a criminal offense can be committed by an active act or by omission. In criminal law, this is referred to as genuine and quasi-omission offenses. A genuine omission offense exists if the law explicitly imposes a duty to act (e.g., failure to provide assistance, § 323c StGB). In the case of quasi-omission, the perpetrator fails to avert a result covered by a criminal statute even though legally obliged to do so—this is linked to a so-called guarantor position (§ 13 StGB). Guarantor positions arise, for example, from law (e.g., parents toward children), contracts, or prior conduct that created a risk. For liability based on omission, it is especially crucial that the required action was possible and reasonable for the offender.
What role does the sentence play in connection with criminal offenses?
The sentence determines the specific severity or type of punishment imposed and is set in the court proceedings in accordance with the seriousness of the offense, the personal circumstances of the perpetrator, and any aggravating or mitigating factors. The statutory ranges for penalties (e.g., “imprisonment from six months to ten years”) define the possible framework within which the court will individually determine the punishment (§§ 38 ff. StGB). The court takes account of the degree of culpability, motives, background, conduct after the offense, and the consequences of the act. In particularly serious cases or in the event of repeat offenses (recidivism), higher penalties may be imposed; for less serious or mitigated cases, the sentence may be reduced. Juvenile criminal law provides for separate sentencing ranges and educational measures.
How does a ground for exclusion of culpability affect the criminal offense?
A ground for exclusion of culpability, such as incapacity due to psychological disorders (§ 20 StGB) or a profound disturbance of consciousness, means that the perpetrator cannot be punished even if the elements of the offense are present, because personal blameworthiness is lacking. Temporary disturbances in insight or control—such as acute intoxication (§ 21 StGB)—may also result in mitigation of punishment or, in extreme cases, complete exemption from punishment. Certain types of errors (factual error, error about grounds of justification) may also exclude culpability. Determining the exclusion of culpability usually requires psychological assessment. In such cases, however, security and rehabilitation measures may be ordered, such as placement in a psychiatric institution (§ 63 StGB).
