Definition and legal classification of the perpetrator
The term perpetrator is of central importance in criminal law and refers to the person who independently commits a punishable act. The precise distinction between the perpetrator and other participants, such as inciter or accomplice, is fundamental for the application of the law and the assignment of penalties. In legal scholarship, various forms of perpetratorship are distinguished, with the definition and application depending in particular on the circumstances of the act and the individual involvement.
Perpetrator concept in German criminal law
Legal definition and general characteristics
There is no direct legal definition of the perpetrator in the German Criminal Code (Sections 25 et seq. StGB). The perpetrator is understood as the person who personally and by his or her own hand fulfills the factual elements of a criminal statute. The counterpart is the participant in an offense, such as the inciter (Section 26 StGB) or the accomplice (Section 27 StGB).
Thus, a perpetrator is anyone who commits an act as their own. The decisive criterion for distinguishing between perpetrator and participant is, in particular, the existence of control over the act (Tatherrschaft), which goes beyond mere assistance.
Overview of individual forms of perpetration
The legal system differentiates between several distinct forms of perpetration:
- Sole perpetrator
- Joint perpetrators (co-perpetration)
- Indirect perpetration
- Perpetrator behind the perpetrator
The doctrine of control over the act
For systematic classification, the so-called doctrine of control over the act (‘Tatherrschaftslehre’) has been established in practice and legal theory. It states that a perpetrator is whoever has the actual control over the course of events and sets the decisive course for the success of the criminal act.
Forms of perpetration
The sole perpetrator (Section 25 Para. 1 Alt. 1 StGB)
The sole perpetrator fulfills the statutory elements of an offence entirely alone. They act on their own responsibility, independently, and carry out the punishable act without the original involvement of third parties. Thus, the sole perpetrator represents the basic model of perpetratorship.
Joint perpetrators (Section 25 Para. 2 StGB)
Joint perpetration is present when several persons carry out a punishable act together and proceed in a division of labor. The prerequisites are a so-called common plan of action and an objective contribution to the act, which constitutes a significant involvement in the criminal offense. The participants are legally treated as independent perpetrators, and their contributions are mutually attributed to each other.
Requirements for joint perpetrators
- Joint intent to commit the crime
- Conscious and deliberate cooperation
- Significant involvement in the core events
This form of perpetratorship is particularly relevant in complex offenses, such as in cases of organized crime.
Indirect perpetration (Section 25 Para. 1 Alt. 2 StGB)
In the case of indirect perpetration, the perpetrator – the so-called ‘mastermind’ – uses another person as an instrument to commit the criminal offense. The frontman is regarded as the ‘act intermediary’ who, due to lack of intent or incapacity, does not act with personal responsibility. The mastermind controls the course of events and is considered the actual perpetrator.
Cases of application for indirect perpetration
- Action through a perpetrator not yet of age of criminal responsibility
- Exploiting an error by the act intermediary
- Exploiting a situation of duress or other lack of free will
Perpetrator behind the perpetrator
Legal scholarship also recognizes the term ‘perpetrator behind the perpetrator.’ This situation involves a scenario in which the frontman also holds perpetrator status, but the mastermind, through special influence or organizational control, essentially determines the course of events—such as in criminally organized organizations.
Distinction: perpetration and participation
Determining whether someone is a perpetrator, inciter, or accomplice is often difficult in practice and is decisive for criminal liability and sentencing. While the perpetrator controls the events, inciters and accomplices are merely participants, as they influence the commission of the act by someone else.
Incitement (Section 26 StGB)
The inciter deliberately leads another to commit an intentional and unlawful act. They are the initiator but not in control of the specific course of events.
Assistance (Section 27 StGB)
The accomplice provides supportive assistance to the offenses of others without exercising actual control over the act or having significant influence on the course of events.
Perpetration in cases of omission offenses (Section 13 StGB)
In cases of omission offenses, a perpetrator may also be one who is required to prevent a result and has a legal duty to act, but remains inactive. The so-called ‘position of guarantor’ is particularly important here: only someone who has a legal duty to act can be considered a perpetrator of an improper omission offense.
Perpetration in a corporate context
In economic and corporate criminal law, the question of criminal responsibility of management personnel and organizational bodies of legal entities often arises. Under criminal law, it is regularly examined whether they appear as perpetrators through active conduct or by breaching a duty to act. Complex scenarios such as co-perpetration or indirect perpetration are also of special significance within organizational corporate structures.
Perpetration in the international context
International legal systems sometimes provide differing definitions and distinctions regarding the concept of perpetration. International criminal law and the criminal law of other countries recognize comparable, but sometimes divergent, forms of perpetratorship and participation in criminal acts. Particularly in international criminal proceedings (for example before the International Criminal Court), the perpetrator concept is assessed using criteria such as organizational control and responsibility.
Significance of perpetratorship for sentencing and legal consequences
Whether a person is classified as perpetrator or participant has significant effects on the sentence to be imposed and the legal consequences. Perpetrators are generally punished according to the full sentencing framework of the concrete offense, while inciters and accomplices may be eligible for mitigating provisions depending on the form of involvement.
Literature and further information
- Criminal Code (StGB), especially Sections 13, 25-27 StGB
- [Links ersetzen: Kommentarliteratur, einschlägige Urteile, Lehrbücher zum Strafrecht]
Summary: From a criminal law perspective, the term ‘perpetrator’ refers to the person who independently and under their own control carries out a punishable act. The specific classification of perpetratorship is fundamental for attributing guilt and punishment, and is based on statutory criteria and recognized definitions (e.g., the doctrine of control over the act). The distinction between different forms of perpetration and their differentiation from incitement and assistance shapes broad areas of criminal law and constitutes central terms for understanding criminal liability.
Frequently asked questions
Can several people be held legally responsible as perpetrators for the same criminal act?
Under German criminal law, several people can be prosecuted jointly as perpetrators for the same criminal offense. This occurs especially in the context of co-perpetration according to Section 25 Paragraph 2 StGB. The prerequisite is that the participants commit the act jointly and through a division of labor—that is, all make a significant contribution to carrying out the act and pursue a common plan of action. The legal consequences are extensive: each co-perpetrator is treated as if they had committed the act entirely themselves, regardless of individual contributions. There are also distinctions to other forms of participation, such as incitement (Section 26 StGB) and assistance (Section 27 StGB), in which the participant does not act as perpetrator themselves, but only contributes to the realization of the act. During criminal investigations and at trial, it must be carefully determined whether the requirements for co-perpetration are met, as this affects sentencing and liability for the statutory elements of the offense.
What role do intent and negligence play with regard to perpetratorship?
In the criminal context, a distinction is made between perpetrators who act with intent and those who act negligently. For the vast majority of offenses, the legislature requires that the perpetrator acts intentionally, meaning they purposefully direct their will towards fulfilling the legal elements of an offense and are aware of the circumstances of the act or at least accept them (§ 15 StGB). This is central for establishing criminal responsibility, since, as a rule, perpetratorship requires intent. Exceptions exist for offenses that expressly penalize negligent conduct. In such cases, a perpetrator can be held criminally liable for lack of due care and the occurrence of the prohibited result, where provided by law (e.g., negligent bodily injury pursuant to § 229 StGB). Proof of the subjective element is essential for prosecution as a perpetrator and has a significant impact on sentencing.
To what extent can a company or legal entity be considered a perpetrator?
Under German criminal law, only a natural person is capable of committing an offense, i.e., only human beings can personally be perpetrators of a crime. Legal entities, such as companies or associations, therefore cannot be prosecuted as perpetrators under criminal law. However, the law on regulatory offenses (OWiG), in Sections 30 and 130, provides that companies may be subject to significant fines if a management person commits a criminal or administrative offense that benefits the company. The introduction of corporate criminal liability (Verbandsstrafrecht) is under discussion, but has not yet been implemented. Broader civil and administrative consequences for legal entities remain unaffected by this.
What criminal consequences arise for the perpetrator in cases of attempt and completion?
The difference between attempt and completion of a criminal offense is significant for the perpetrator role. Attempted offenses are in principle punishable under Section 23 StGB, provided the law expressly provides for this or the offense constitutes a felony. The perpetrator of an attempt is generally punished less severely than the perpetrator of a completed offense under Section 23 Para. 2 StGB. The decisive factors are how far the perpetrator has already realized the act and to what extent their conduct posed a risk to the protected legal interest. Withdrawal from the attempt under Section 24 StGB can mean that the perpetrator remains unpunished if they, voluntarily and earnestly, prevent further commission or genuinely try to avert the result.
What special features apply to perpetratorship in juvenile criminal law?
Juvenile criminal law, which applies to perpetrators between the ages of 14 and 17 (and in some cases up to 21 for young adults), contains special provisions that focus primarily on educational measures. The Juvenile Court Act (JGG) provides for differentiated sanctions that differ significantly from those of adult criminal law, such as educational measures (§ 9 JGG), disciplinary measures (§ 13 JGG), or juvenile detention (§ 17 JGG). The examination of guilt and responsibility is often central, with attention paid to the individual maturity and development of the juvenile perpetrator. The main goal of perpetrator treatment in juvenile criminal law is to prevent future offenses through education, not mere punishment.
Is there a possibility of mitigation of punishment for perpetrators in the case of comprehensive cooperation with investigative authorities?
Perpetrators who fully cooperate with the investigative and prosecuting authorities may be able to expect mitigation of punishment under certain statutory conditions. This includes, among others, the so-called crown witness provisions, such as § 46b StGB, which apply in the area of organized crime. A prerequisite is that the perpetrator contributes to the clarification of an offense of significant importance or helps to prevent completion of the act through their statements. A credible confession or demonstrated remorse may also influence the sentencing in favor of the perpetrator pursuant to Sections 46 et seq. StGB. The concrete mitigation regularly lies within the discretion of the court, which weighs the circumstances of the individual case comprehensively.
How is the distinction made between perpetrator and participant in German criminal law?
German criminal law makes a precise distinction between the perpetrator (direct perpetrator or co-perpetrator) and the participant (inciter or accomplice). The decisive factor is whether the person concerned controls and substantially steers the act—the so-called ‘doctrine of control over the act.’ Perpetrators are those who fulfill the statutory elements on their own responsibility (sole or co-perpetrators). Participants, on the other hand, are those who merely support or bring about another’s act without having significant influence on the course of events. They are punished under the provisions concerning incitement (Section 26 StGB) or assistance (Section 27 StGB), each with their own sentencing parameters. Classification as perpetrator or participant is often decisive for the severity of punishment and for the application of special criminal law provisions.
