The German Criminal Code (Reichsstrafgesetzbuch, StGB.) Of May 15, 1870 was proposed and voted as a law by the North German confederation and by § 2 of the law of April 16, 1871 was declared the law of the Reich. It largely coincides with the Prussian penal code of 1851, formed under the influence of Rhenish patrons, and, like this, therefore still shows some influences of the French Code pénal ; for example, in the provisions relating to the attempt and participation in a crime as well as in the subdivision of punishable acts in Verbrechen, Vergehen, Übertretungen (crimes, misdemeanors, fines). Neglecting the introductory provisions (§§ 1-12), which among other things deal with international criminal law, the code is divided into a general part (§§ 13-79) and a special part (§ * 80- 370); the last of the 29 chapters of the special part deals with fines, on the discussion of which in the StGB., there was much criticism in the attempt to offer a clearer distinction between crimes and offenses on the one hand and fines on the other.
Like almost all the old European penal codes, the Germanic penal code can be considered as an expression of the predominant juridical-political conceptions at the end of the century. XVIII; and in the light of these it was interpreted until recently; for example, legislation and jurisdiction departed from the rigid distinction, already claimed by Kant and Anselmo von Feuerbach (1775-1833), between behavior contrary to the law and punishable by law and immoral behavior, removed from the influence of the state.
The various kinds of penalties are: the death penalty, introduced after disputes full of vicissitudes and then always controversial; the penitentiary (for life or from 1 to 15 years); prison (from 1 day to 5 years); confinement (for life or from 1 day to 15 years); arrest (from 1 day to 6 weeks); and the pecuniary penalty. Given the aspiration of the code to achieve the greatest possible correspondence between the penalty and the defense of the law, the types of offenses contained in the special section involve numerous (56) and different penalty limits. Ancillary penalties are the loss of civil rights, disqualification from public office, and subjection to police supervision. The law against dangerous habitual offenders and on safety and corrective measures (Gesetz gegen gefährliche Gewohnheitsverbrecher und über Massregeln der Sicherung und Besserung) of November 24, 1933 completes this system of penalties, while, anticipating an important element of the subsequent reform of criminal law, strongly emphasizes the principle of security. The “security and corrective measures”, introduced in the code in a special chapter, aim, in addition to the reaction to which punishment tends, the protection of the future society, with which a modern aspiration has been achieved. These measures are: internment in a health or assistance institution, hospitalization in a nursing home, for people addicted to drunkenness or drugs, employment in a workhouse, security custody, ’emasculation of dangerous offenders against morality and prohibition from exercising the profession. Security custody must be ordered by the criminal judge in the sentence, being dangerous habitual offenders, if public security requires it. The internment has the duration required by the intended purpose.
The current penal code leaves the determination of many general concepts to doctrine and jurisprudence, it even avoids defining the concept of willful misconduct and negligence and does not contain any general rule on the criterion for setting the penalty, within the limits established by law.
The changes undergone by the penal code since its publication are indeed numerous and in part of fundamental importance. For the sec. XIX are worth mentioning the so-called “paragraph of the pulpit” (§ 130 a), directed against the abuses of ministers of worship to the detriment of the state, and § 49 a, which was modeled on the basis of a Belgian law, on the occasion of a project of attack against Bismarck; laws of 1880 and 1893 introduced penal provisions against usury exercised on credits and things. A supplementary law of 19 June 1912 reduced the penalties for crimes against property committed in need (§§ 248 to, 264 in, 370 no. 5). By a law of 26 May 1933 the sword fight is declared not punishable by direct and suitable provisions to guarantee against the risk of life (therefore especially student duels). A significant completion of the precepts of the StGB. brought, in the matter of crimes against the homeland, in addition to significant increases in the sentence, the law of 26 May 1933 on the modification of certain criminal precepts (Gesetz zur Abänderung strafrechtlicher Vorschriften). With the law of April 24, 1934, §§ 80-93 was replaced by the new §§ 80-93 a. A cornerstone in the renewal of criminal law is the law of 18 June 1935 for the modification of the penal code. The previous law established that a penalty can be inflicted for an act only if this was provided for by law before the action was committed (nullum crimen sine lege, nulla poena sine lege). Hence the prohibition of analogical application of the criminal law and the non-retroactivity of a criminal law, subsequent to the crime committed, which introduced a penalty ex novo or exacerbated it. In the future, the retroactive force of a given criminal law may be expressly established. Examples of this are the law of June 22, 1936 against the rape of children for the purpose of blackmail and the law of June 22, 1938 against road brigandage by car disasters. Furthermore, today – in the sense of the prevalence of substantial justice over formal justice – the principle: ” nullum crimen sine poena ” is valid. Thus establishes the new § 2: “Whoever commits an action, deemed punishable by law or deserving of a penalty according to the informative spirit (Grundgedanke) of a criminal law or on the basis of healthy popular sentiment (gesundes Volkempfinden), must be punished. If, in the specific case. a specific criminal law does not apply, the action is prosecuted on the basis of the law, whose informative spirit is best suited to it. Many judges already rely on this new provision. Further modifications and additions brought the law of 2 July 1936, with which the series of short stories to the penal code was closed.
Very numerous (over two hundred) are the so-called accessory criminal laws. We cite, among the most remote ones, the military penal code of 1872 (compiled again on June 16, 1926), the law on the press (Pressegesetz) of May 7, 1874, the law on explosive materials (Sprengstoffegesetz) of June 9, 1884, the law for the bird protection (Vögelschutzgesetz) of 30 May 1908; among the most recent ones we remember the law for the fight against sexual diseases (Gesetz zur Bekämpfung der Geschlechtskrankheiten) of February 18, 1927, the law on taverns, inns, etc. (Gaststättengesetz) of 28 April 1930, the law for the protection of animals (Tierschutzgesetz) of 24 November 1933, the law on courts for minors of 16 February 1923 (which opposed the principles of the classical school and introduced, alongside the penalty or in place of it, educational measures for the guilty minor), the law against the economic sabotage of December 1, 1936 and others. Several laws and ordinances are directed against the enemies of the state and the people.
Almost from the beginning of the century. XX expected the reform of criminal law officially or by means of commissions appointed by the state. The so-called dissent of the schools was very influential on the reform work. Against the principle of the “classical school” (remember especially K. Binding) which wanted to use punishment as a means of general prevention, it was accentuated by the “modern school” or sociological-criminal school (in Germany: F. von Liszt and others) the purpose for which the penalty is aimed at having regard to the individual offender (principle of special prevention). Following projects of 1909, 1913, 1919 and 1922, the first “official draft of a German general penal code” appeared in 1925, which had been drawn up in consultation with competent Austrian jurists. After a discussion of several years, of the same was completed only the first reading (project 1930). Since the end of 1933 a criminal law commission, appointed by the Minister of Justice on the orders of A. Hitler, has been working on the formation of a draft criminal code.
