Concept of the ‘Unlawful Act’
Die unlawful act is a central concept in German criminal law and, moreover, has fundamental significance in other branches of law, particularly in civil and administrative law. It denotes a violation of the legal order in which all elements of a statutory criminal offense are fulfilled and no grounds for justification exist. The unlawful act is a prerequisite for sanctions and measures in criminal law as well as for claims for damages in civil law.
Characteristics of the Unlawful Act in Criminal Law
Legal Elements and Unlawfulness
In criminal law, a distinction is made between the objective and subjective elements of an offense. An unlawful act is present when an action fulfills all the objective (external) and subjective (internal) elements of a criminal statute.
1. Conduct Fulfilling the Legal Elements
A person’s conduct must fulfill the statutory elements of a criminal provision (§ 1 StGB: No penalty without law).
2. Unlawfulness
If the statutory elements are fulfilled, it is generally presumed that the action is also unlawful. Unlawfulness exists unless, exceptionally, a legally recognized ground for justification applies, such as:
- Self-defense (§ 32 StGB)
- Necessity (§§ 34, 35 StGB)
- Consent
- Conflict of duties
Unlawful vs. Culpable Act
Under German criminal law, a distinction is made between Fulfilling the elements of an offense, Unlawfulness und Culpability . An act is only punishable if it is committed both in accordance with the statutory elements, unlawfully, and culpably. The unlawful act is thus a necessary intermediate stage on the way to punishability; a culpable act is always also unlawful, but not every unlawful act is punishable if culpability is lacking (e.g., in cases of legal incapacity).
Distinction from Related Terms
Prohibited Conduct
Prohibited conduct is present as soon as a legal provision has been violated, regardless of whether grounds for justification apply. Only the absence of justification transforms prohibited conduct into an unlawful act.
Regulatory Offense
The concept of a regulatory offense must be distinguished from that of a criminal offense. A regulatory offense also requires an unlawful violation of a law (§ 1 OWiG), but is associated with lesser legal consequences (usually monetary fines) and is not classified as an ‘unlawful act’ in the criminal law sense.
Legal Consequences of the Unlawful Act
Criminal Law Consequences
In criminal law, the unlawful act is the decisive prerequisite for:
- Criminal Prosecution: Imprisonment or fine.
- Ancillary Consequences: Measures such as withdrawal of a driving license or preventive detention.
- Precondition for Establishing Guilt: Only an unlawful and culpable act is punishable.
Measures under Juvenile Justice Law
The Juvenile Court Act (JGG) also uses the term unlawful act (§ 3 JGG). Measures and sanctions against juveniles may only be imposed when the requirements of an unlawful act are met.
Civil Law Implications
In addition to criminal law relevance, an unlawful act often leads to civil liability claims. One example is tortious acts under § 823 para. 1 BGB: Anyone who intentionally or negligently injures the life, body, health, freedom, property, or any other right of another unlawfully is obliged to compensate for the resulting damage. The Illegality of the act is a prerequisite for tortious liability.
Administrative Law Significance
In administrative law as well, the unlawful act is a prerequisite for measures (for example, confiscation, forfeiture of criminal proceeds), particularly in police and regulatory law.
Specific Types of Unlawful Acts
Attempted Unlawful Act
Not only completed, but also attempted unlawful acts can be punishable. According to § 22 StGB, an act is considered an attempt if the perpetrator begins to commit the act but does not complete it. In the case of attempt, the conduct must also fulfill the elements of the offense and be unlawful.
Negligent Unlawful Act
An unlawful act can be committed intentionally or negligently, provided that the applicable criminal law also penalizes negligent conduct (cf. § 15 StGB).
Exclusion of Unlawfulness: Overview of Grounds for Justification
Self-defense (§ 32 StGB)
Acts necessary to defend against a present, unlawful attack are not unlawful.
Necessity (§ 34 StGB)
To protect legal interests against a present danger, third-party interests may be impaired under certain circumstances, which also eliminates the unlawfulness of the act.
Consent
Acts to which the affected person has expressly or tacitly consented beforehand are not unlawful under certain conditions.
Official Duty
Executive actions of authorized authorities are not unlawful within the scope of legal provisions.
Relevance in Criminal Procedure
Unlawful Act as a Prerequisite for Criminal Prosecution
A criminal investigation is generally only initiated if there are sufficient factual indications for the existence of an unlawful act (§ 152 para. 2 StPO).
Concept of the ‘unlawful act’ in the law on measures
Many measures of reform and preventive detention require an unlawful act. This applies, for example, to placement in a rehabilitation facility (§ 64 StGB) or in preventive detention (§ 66 StGB).
Summary
The unlawful act forms a central element of the entire legal system. It is the prerequisite for punishability and measures in criminal law, the basis for liability claims in civil law, and the starting point for many administrative interventions and regulatory measures. Crucial for the existence of an unlawful act is the fulfillment of a statutory offense under exclusion of all grounds for justification. Only on this basis can further legal consequences arise.See also:
- Punishability
- Legal Elements
- Culpability
- Justifying Grounds
- Tort Law
- Regulatory Offense
Literature & Weblinks
- Criminal Code (StGB), Civil Code (BGB)
- Schönke/Schröder: Criminal Code – Commentary
- Roxin: Criminal Law General Part
- BGH Case Law on Unlawful Acts
- Gesetze im Internet, Bundesministerium der Justiz – www.gesetze-im-internet.de
Frequently Asked Questions
When is an act considered ‘unlawful’ in criminal law?
In criminal law, an act is considered unlawful if it fulfills the statutory elements of a criminal offense and no grounds for justification, such as self-defense or necessity, exist. Unlawfulness is a prerequisite for punishability and means that the act is prohibited under the overall legal system. It is to be considered separately from the question of culpability. Even if a person fulfills the objective elements of the offense and the subjective requirements (intent or negligence), punishability can only arise if the act is not permitted by a legally recognized ground for justification. If a ground for justification is absent, for example, because there was no situation of self-defense, the act is unlawful, regardless of whether the perpetrator is culpable or not. Thus, the determination of unlawfulness is an independent point of assessment within the framework of criminal law assessment of conduct.
What are the consequences of determining the unlawfulness of an act?
If a criminal court determines that an act is unlawful, this leads to various consequences. Initially, unlawfulness forms the basis for criminal responsibility: Only if the conduct was unlawful can further steps such as establishing guilt and possibly a conviction follow. But unlawfulness can also have significant consequences in civil law, for example in the context of claims for damages under § 823 BGB, as an ‘unlawful act’ is required there. Furthermore, the initiation of disciplinary or professional consequences is often possible, particularly if the act is not only punishable but also incompatible with professional ethics. In very specific cases, the determination of unlawfulness can also have effects in administrative proceedings.
What role do justifying grounds play in assessing unlawfulness?
Justifying grounds are circumstances established or recognized by law that exceptionally render an otherwise unlawful act permissible. Classic justifying grounds are self-defense (§ 32 StGB), necessity (§ 34 StGB), parental right to discipline (today largely restricted), or the victim’s consent. If a justification exists, the unlawfulness of the act is completely negated. This means that although an act would otherwise have been punishable, it remains exempt from punishment due to the justification. The correct examination and application of justifying grounds is therefore central to the precise legal assessment of an act.
Is every act that fulfills statutory elements automatically unlawful?
No, not every act that fulfills the statutory elements is automatically unlawful. Under German criminal law, the so-called two-step principle applies: First, it is examined whether the statutory offense is fulfilled (elements of an offense). Only in the second step is it checked whether the act is also unlawful or whether a justifying ground applies. Thus, an act may fulfill all objective and subjective elements of a criminal offense but still remain legally permissible if a justification exists. Only if the offense is fulfilled and no justification exists is the act considered unlawful.
What is the significance of unlawfulness as a prerequisite for ancillary consequences, such as measures or offender-victim mediation?
The determination of unlawfulness is also essential for further criminal consequences, so-called ancillary consequences. For the ordering of measures of rehabilitation and security, such as placement in a rehabilitation facility or preventive detention, an unlawful and culpable act must be present. The same applies to the conduct of offender-victim mediation, since this is only concerned with acts that have a wrongful content. Civil claims, such as for pain and suffering or compensation, also require an unlawful act, even if, for example, there is no culpability due to age or mental condition.
Can lawful acts also have criminal consequences?
In principle, lawful acts cannot have criminal consequences, as criminal liability requires that the conduct crosses the threshold to unlawfulness. An act covered by a justification—such as self-defense—may remain exempt from punishment. However, in individual cases, a court may examine the necessity and appropriateness of the justification, especially whether the limits of the justifying grounds were observed. For example, if the person exceeds the necessity of self-defense, this part constitutes an unlawful act that can be punished. Therefore, a residual risk for legal consequences exists only if the justification is exceeded.
Is the assessment of unlawfulness always objective, or do subjective circumstances play a role?
The assessment of unlawfulness is initially objective, i.e., independent of the individual motives and perceptions of the offender. It is checked whether the conduct in question, based on external circumstances, violates the law or is covered by a justification. Subjective elements are regularly only relevant in the examination of culpability or in particular cases, for example, when an offender erroneously believes a justification exists. In such cases, a so-called mistake about the justification may apply, which in turn may lead to mitigation of punishment. In general, however, unlawfulness remains a predominantly objectively assessed feature.
