Der normativ-funktionale Straftatbegriff und sein freiheitsrechtliches Fundament

Abstract

The paper aims to further concretise our previously proposed normative-functional concept of the criminal offense. It is rooted in a liberal paradigm and guides not only the criminal offense doctrine, which provides for specific criteria to warrant a legitimate verdict and the determination of legal consequences (in the sense of an adequate additional hardship imposed in the context of the sentencing itself). Furthermore, it offers a much-needed refinement in cases where the same act violates more than one criminal statute (Konkurrenzen), and for the concept of the criminal offense within the criminal proceedings. Our concept characterizes the offense by a sufficiently substantial breach of a legally required conduct norm (along with specific consequences thereof, in some cases). Such a legal rule of conduct – determined for the respective individual according to the specific circumstances they find themselves in – affects at the least their personal autonomy, and thus requires legitimisation. This legitimisation must heed the constitutional standard of proportionality – the benchmark of which establishes the individual opportunity for self-expression that is compatible with the legitimate interests of others. At its core lies a broad understanding of freedom that appropriately explains the trade-off between conflicting interests necessary for the justification of legally required standards of behaviour, at the same time. This offers a solution to the issue of trying to identify the minimum level of applicable criminal sanctions. Thus, this concept is preferable to competing concepts.