NCJ Number
56596
Journal
ZEITSCHRIFT FUER DIE GESAMTE STRAFRECHTSWISSENSCHAFT Volume: 90 Issue: 4 Dated: (1978) Pages: 927-964
Date Published
1978
Length
38 pages
Annotation
WEST GERMAN LEGAL PROVISIONS ARE ANALYZED, WITH THE ARGUMENT THAT ACCESSORIES IN CRIME SHOULD BE CONSIDERED OFFENDERS IN THEIR OWN RIGHT.
Abstract
ACCORDING TO TRADITIONAL INTERPRETATION, THE ACCESSORY'S OFFENSE IS DEPENDENT ON THE MAIN OFFENSE AND THE MAIN OFFENDER'S CRIMINAL ACTION. THIS POSITION, THOUGH ACCEPTABLE IN THE PAST, VIOLATES THE PRESENT WEST GERMAN CONSTITUTIONAL CLAUSE INDICATING THAT PERSONS MUST HAVE COMMITTED THE OFFENSE THEMSELVES IN ORDER TO BE PUNISHED. SEVERAL PASSAGES IN THE GERMAN CRIMINAL CODE HOWEVER, INDICATE THAT PARTICIPATION IN CRIME, ALTHOUGH DEPENDENT ON ANOTHER PERSON'S OFFENSE, IS AT THE SAME TIME AN INDEPENDENT OFFENSE. THUS, AN ACCESSORY WILL NOT BE HELD RESPONSIBLE IF THE MAIN OFFENDER HAS NOT COMMITTED A CRIMINAL ACTION OR IF THE OFFENDER HAS COMMITTED A DIFFERENT KIND OF CRIMINAL ACTION THAN THE ONE THE ACCESSORY INTENDED. HOWEVER, IN CASES IN WHICH THE MAIN OFFENDER'S CRIMINAL ACTION CAN BE CLEARLY LINKED TO THE ACCESSORY, IT USUALLY CAN ALSO BE SHOWN THAT THE ACCESSORY HAS COMMITTED AN OFFENSE. THE SAME ARGUMENT HOLDS TRUE FOR THE INSTIGATORS OF OFFENSES: AN INSTIGATOR IS ONLY GUILTY OF A CRIMINAL ACTION IF HIS BEHAVIOR IS THAT OF ILLEGAL 'SOLICITATION' OR 'ATTEMPTED SOLICITATION.' IN THE CASE OF ATTEMPTED SOLICITATION TWO ADDITIONAL CONDITIONS HAVE TO BE FULFILLED: FIRST, THE INSTIGATOR MUST BE AWARE THAT THE INTENDED ACTION IS CRIMINAL IN NATURE, AND SECOND, THE INSTIGATOR'S ATTEMPTS MUST HAVE BEEN 'SUITABLE' TO BRING ABOUT THE DESIRED ACTION IN THE MAIN OFFENDER. THE ARTICLE CONTAINS NUMEROUS FOOTNOTES. --IN GERMAN. (SAJ)