The General Part of the German Criminal Code (StGB)

The General Part (Allgemeiner Teil) of the German Criminal Code (Strafgesetzbuch, StGB) establishes the general principles of criminal liability that apply to all criminal offences. It is one of the most systematically developed bodies of criminal law doctrine in the world, structured around the three elements of the criminal offence: actus reus (Tatbestandsmäßigkeit), unlawfulness (Rechtswidrigkeit), and fault (Schuld). The General Part also governs attempt, participation, self-defence, necessity, mistake of law, and the legal consequences of criminal conduct. Sections 1 to 79b StGB contain the General Part, which applies to all offences in the Special Part unless otherwise provided.

The Structure of Criminal Liability

German criminal law doctrine analyses criminal liability through a three-stage structure. The first stage is actus reus (Tatbestand): the conduct must satisfy the objective and, where applicable, subjective elements of the offence definition. The second stage is unlawfulness (Rechtswidrigkeit): the conduct must not be justified by a defence such as self-defence, necessity, or lawful authority. The third stage is fault (Schuld): the offender must be culpable, meaning they had the capacity to understand the wrongfulness of their conduct and to act in accordance with that understanding. Each stage builds on the previous one: if conduct does not satisfy the actus reus, there is no need to consider unlawfulness; if conduct is justified, there is no need to consider fault. This systematic structure ensures rigorous analysis of criminal liability and reflects the German commitment to conceptual clarity in criminal law doctrine.

Actus Reus: Tatbestand

The Tatbestand (actus reus) comprises the objective elements of the offence. Each offence in the Special Part defines its own Tatbestand, specifying the prohibited conduct, the relevant circumstances, and, where applicable, the required result. Offences are classified as result offences (Erfolgsdelikte), which require a specific consequence such as death or damage to property, and conduct offences (Tätigkeitsdelikte), which prohibit specific conduct regardless of the result. Result offences require proof of causation (Kausalität) between the conduct and the result, determined by the condition theory (conditio sine qua non) modified by the theory of adequate causation (Adäquanztheorie). The objective imputation (objektive Zurechnung) doctrine further restricts liability where the result was not within the scope of the risk created by the conduct. The Tatbestand also includes, where the offence definition requires it, subjective elements of intent (Vorsatz) or negligence (Fahrlässigkeit), though fault is analysed as a separate stage.

Unlawfulness: Rechtswidrigkeit

Conduct that satisfies the Tatbestand is presumed to be unlawful unless a justification (Rechtfertigungsgrund) applies. The principal justifications under the General Part are self-defence (Notwehr) under section 32 StGB, necessity (rechtfertigender Notstand) under section 34 StGB, and the use of lawful force by public authorities. Self-defence permits the use of force necessary to repel an imminent unlawful attack on oneself or another. German law treats self-defence broadly: there is no requirement of proportionality between the interests protected and the harm inflicted, only a prohibition on abuse of right. Necessity under section 34 StGB justifies conduct that would otherwise be unlawful if it is necessary to avert an imminent danger to life, limb, freedom, honour, property, or other legally protected interest, and if the interest protected manifestly outweighs the interest sacrificed. The justification of necessity requires a balancing of interests and is subject to proportionality constraints. Other justifications include consent (Einwilligung), presumed consent (mutmaßliche Einwilligung), and the lawful exercise of official authority.

Fault: Schuld

The fault stage (Schuld) examines whether the offender is personally culpable. German criminal law requires that the offender have the capacity for fault (Schuldfähigkeit) under sections 20–21 StGB. A person acts without fault if, at the time of the offence, they were incapable of understanding the wrongfulness of their conduct or of acting in accordance with that understanding due to a pathological mental disorder, a profound disturbance of consciousness, mental deficiency, or another serious mental abnormality. Reduced capacity may lead to mitigation of the sentence. The fault stage also addresses mistake of fact (Tatbestandsirrtum) under section 16 StGB and mistake of law (Verbotsirrtum) under section 17 StGB. A mistake of fact negates intent if the offender was unaware of a circumstance that is an element of the offence. A mistake of law occurs where the offender does not understand that their conduct is unlawful; such a mistake may reduce or eliminate fault if it was unavoidable.

Attempt

Attempt (Versuch) is governed by sections 22–24 StGB. A person attempts an offence if they take a direct step toward its commission, intending to commit the offence. The attempt must have progressed beyond mere preparation to the point where the conduct would directly lead to the completion of the offence unless interrupted. The punishment for attempt is generally less severe than for the completed offence, with the court having discretion to reduce the sentence. Abandonment (Rücktritt) under section 24 StGB may eliminate liability for attempt if the offender voluntarily abandons the attempt and prevents the completion of the offence. The abandonment must be voluntary and not motivated by external obstacles. The rules on attempt reflect the German approach to inchoate liability: the conduct must have reached a stage of dangerousness that justifies criminal intervention, but the offender may escape liability by voluntarily desisting.

Participation

German criminal law distinguishes between perpetrators (Täter) and participants (Teilnehmer). Section 25 StGB defines perpetration, including direct perpetration, indirect perpetration (mittelbare Täterschaft), and joint perpetration (Mittäterschaft). Section 26 StGB defines instigation (Anstiftung): intentionally inducing another to commit an intentional offence. Section 27 StGB defines aiding (Beihilfe): intentionally assisting another in the commission of an intentional offence. The distinction between perpetration and participation is determined by the Tatherrschaft (control over the act) theory: the perpetrator has control over the commission of the offence, while the participant merely assists or induces. The participant’s liability is derivative: there must be an intentional principal offence (or at least an attempt) for participation to be punishable. Instigation is punished as if the instigator were a perpetrator, while aiding carries a reduced sentence.

Self-Defence and Necessity

Self-defence (Notwehr) under section 32 StGB is a justification that permits the use of force to repel an imminent unlawful attack. The right of self-defence is broad: any necessary means may be used, and there is no requirement to balance the interests at stake. The only limitations are the prohibition on abuse of right and the requirement that the defensive action be necessary. The defence also applies to the defence of others (Nothilfe). Necessity under section 34 StGB (rechtfertigender Notstand) justifies conduct to avert a danger when the protected interest substantially outweighs the interest harmed. Section 35 StGB provides a defence of excusing necessity (entschuldigender Notstand) where the offender acts to avert a danger to life, limb, or freedom but the balancing test under section 34 is not satisfied. The distinction between justification and excuse is fundamental to German criminal law: justified conduct is lawful, while excused conduct is wrongful but not personally culpable.