CC BY
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UDC 343.3/.7
Serebrennikova A. V.
Doctor of law, Professor of criminal law and criminology Moscow state University. M. V. Lomonosov
Russia, Moscow DOI: 10.24411/2520-6990-2019-10101 CRIMINAL ACTS AGAINST HONOR AND DIGNITY UNDER THE CRIMINAL CODE OF
GERMANY.
Abstract
In the article, the author examines the criminal acts provided for by Section 14 of the Special Part of the German Penal Code and criminalizing the encroachment on the honor and dignity of the person. Analyzed the relevant elements of criminal acts, analyzed their signs. In contrast to Chapter 17 of the Criminal Code of the Russian Federation, which is devoted to the protection from criminal encroachment of the freedom, honor and dignity of an individual, the German legislature divides this group of criminal acts into two separate sections: the 14th, referred to in this article, and the 18th which criminalizes the infringement of personal freedom
Keywords: Criminal Law, German Criminal Code, Particular system, criminal acts against the honor and dignity of the individual.
The element of the system of criminal acts against the person is section 14 of the Special part of the Criminal Code of Germany. It is called "Insult", although, in our opinion, it would be more accurate to call this section "Criminal acts against the honor and dignity of an individual". This view can be explained by the fact that this section contains elements of criminal acts related to insult and slander. The legal benefits protected by these norms are the honor and dignity of an individual, which, in case of a slander, is understood in an objective sense, that is, an assessment of human behavior in the opinions of others, and in case of an insult - in a subjective sense, that is, in the aspect of the person's own assessment of the person's own personality.
The proportion of compositions connected with insult and slander is characterized by the fact that the victim for this category of cases can be any person, regardless of age and mental state, i.e. they can be both children and the mentally ill. However, victims of insult or slander (§ 185 - § 188) cannot be deceased. Therefore, in the Criminal Code of Germany (§ 189) a special norm is provided - defaming the memory of the deceased. It should be noted that the victims of the criminal act provided under § 187a, can only be a political figure.[1]
In this regard, the question is being discussed whether legal entities can be objects of criminal legal protection against insults and slander. The judicial practice resolves this issue ambiguously. In our opinion, based on their interpretation of the criminal law norms of the section under consideration, only individuals can be victims of these criminal acts. Therefore, only civil liability can be incurred for insulting a legal person and slandering it.[2]
These were general comments on the criminal acts in question. Section 14 of the Special Part of the Criminal Code of Germany contains the following compositions: simple insult and insult by action (§ 185); slander (§ 186); deliberate slander (§ 187); slander and deliberate slander regarding a politician (§ 188, which is a qualified composition of § 186 and § 187) and defamation of the memory of a deceased (§ 189).
At § 186 and § 187, respectively, severe cases of slander and deliberate slander are provided if in the first case the act was committed publicly or by disseminating written materials (§ 11, indent 3), and in the second case, if the act was committed publicly, at a meeting or by written materials (§ 11, indent 3).
It should be noted that based on the protection of universally recognized human values, which undoubtedly include the honor and dignity of the individual, the norms of the Criminal Code of Germany, concerning the criminal law protection of these legal benefits, are in essence formulated in the same way as in the Russian Criminal Code, despite that the dispositions of the relevant standards may vary.
For example, from an objective point of view, an insult (§ 185) consists in the indecent treatment of a person which humiliates the person's honor and dignity, in which a negative assessment of the victim's personality is expressed. Within the meaning of this provision, an insult can be inflicted on the victim orally, in writing or in action. A slander (§ 186) is the approval or dissemination of information defaming another person. For the purposes of this provision, the concept of "statement" and "dissemination" are synonymous, since they imply the communication of disseminated facts to at least one person, and not to the victim. The disseminated information, in the sense of § 186 should defame the victim or humiliate the person in the eyes of the public and not be provable (the German legislator points only to these features of disseminated facts, a feature of their falsity, as is, for example, in Russian criminal law, is absent here).[3]
The main difference between this norm from § 187 - a deliberate slander - is that it introduces another feature of the information being disseminated: it must not only defame the victim or be able to degrade his dignity, but may also threaten the person's creditworthi-ness, trust or reputation.
These criminal acts must be committed intentionally.
Such is the general description of the elements of criminal acts provided for in section 14 of the Special
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Part of the Criminal Code of Germany, protecting the honor and dignity of a person in the criminal law order. Bibliography
1. Wessels J./Hettinger М. Strafgesetzbuch. BT. Rdn. 302. München, 2017.
2. Serebrennikovа A. V. Criminal law of Germany. Textbook. M., 2019.
3. Joecks W. Strafgesetzbuch. Studienkommentar. München, 2017. S. 415.
© Serebrennikova A.V., 2019
UDC 343.3/.7
Serebrennikova A. V. Doctor of law, Professor of criminal law and criminology Moscow state University. M. V. Lomonosov
Russia, Moscow DOI: 10.24411/2520-6990-2019-10102 CRIMINAL ACTS AGAINST PERSONAL FREEDOM UNDER THE CRIMINAL CODE OF
GERMANY.
Abstract
The author's attention is paid to criminal acts against personal freedom under the German law ofpersuasion, which are punishable under Section 19 of the Special part of the act, directly infringing on public relations, ensuring the right of a person to move arbitrarily and determine his location, unless otherwise expressly provided by law. The legal benefit protected by these norms is the personal freedom of the person in its various manifestations (freedom of decision-making, freedom of movement, freedom of will of the victim, freedom of implementation of his decision). In Satya describes the characteristics of these compositions pre stupnik acts, provides the relevant statistics.
Keywords: Germany, criminal law, criminal code, criminal dénia against personal freedom.
The element of the system of criminal acts against the person, provided for by the Criminal Code of Germany, is criminal encroachment against personal freedom. They are provided in section 18 of the Special Part of the Criminal Code of Germany, which bears the same name.
This group of criminal offenses includes those acts that infringe either on individual freedom or on other law-enforcement values along with individual freedom. [1] Criminal acts against personal liberty include abduction of a person (§ 234), abduction of minors (§ 235), unlawful deprivation of liberty (§ 239), coercion (§ 240) and taking under suspicion for political reasons (§ 241).
It should be noted that the freedom of the individual is protected not only by the norms of this section, but also by the norms located in other sections of the Special Part (for example, the norms on criminal acts against gender self-determination (§ 174 et al.), against property and the norms on property criminal acts (§249 et al.), in which personal freedom is protected along with other law-enforcement benefits).
The legal good protected by these norms is the personal freedom of a person in its various manifestations (freedom of decision making, freedom of movement, freedom of volitional activity of the victim, freedom to implement own decision).
The main part of the section in question of the Special Part of the Criminal Code of Germany is § 239, establishing criminal liability for unlawful deprivation of liberty. This provision was partially amended by the Sixth Law on the Reform of Criminal Law of January 26, 1998. The § 239 protected legal benefit is the personal freedom of movement of a person. At the same
time, free will is the ability of a person to leave the person's place of stay and return there.
The basic structure of the considered criminal act is provided for in indent 1: "He who locks a person or otherwise deprives him of his liberty shall be punished with imprisonment of up to five years or a fine."
The victim of this criminal act can be any person who is able to move naturally, either with the help of equipment designed for this purpose, such as crutches or a wheelchair, or with the help of someone else's help. The decisive condition for the qualification of the actions of the accused in this provision is that the victim is locked against own will in the place where the victim does not want to be. [2]
Such a feature as locking is understood by the doctrine and court practice more broadly than simple closure with a key. These can be any means designed to prevent the victim from freedom of movement, or preventing the victim from leaving the room where the victim does not want to be (for example, locking a person in any room or vehicle, preventing the victim from going out by setting up dogs, etc.). Depriving of liberty otherwise involves any other means, for example, tying to furniture, etc.
In the criminal law doctrine of the Federal Republic of Germany, it is debatable whether a guilty constitutes a composition of the criminal act, provided for by this norm, if a guilty performs actions against a person who does not have free will or realization of will at the time of committing a criminal act (for example, deeply intoxicated). It seems that the answer should be negative. This composition of the criminal act is missing, in our opinion, in the following situation. A "guilty" locks his girlfriend in the bedroom. Returning an hour later,
