【Reading Notes】General Treatise on Criminal Law in Germany: Using Jurisprudence as a Lesson (Chapter 26)

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Author: [De] Ingleberg · Popper

Translators: Xu Lingbo, Yu Haodong

Publisher: Peking University Press

Content reading: The result of the help - the dust-proof shirt case

Facts: The defendant was prosecuted on suspicion of being an aider to the crime of intentional injury, and he lent K, who wanted to wait for an opportunity to attack and abuse P, a blue dustproof shirt, so that K could disguise the shirt when committing the crime, so that the victim could not easily recognize him.

The Imperial Court held that such a facilitation existed in the present case for the following reasons: the facilitation of the commission of the offence or the facilitation of the offence does not require that the act of assistance must have a fundamental effect, but, on the contrary, the act of aiding is entirely outside the framework of direct criminal activity, provided that it somehow contributes to the fact of the offence, especially when the act of the helper strengthens the will of the principal offender and thereby facilitates the commission of the offence. The strengthening of the offender's will can be manifested in alleviating or eliminating the offender's fear of being found out about the crime, reinforcing the hope that the offense will not be detected or punished, and dispelling the offender's doubts about whether or not to commit the crime.

Professor Popper argues that in the present case, the causal explanation for the victim's bodily injury was that the principal offender had beaten him, and that the principal offender was wearing a blue dustproof shirt, was not a necessary part of this causal interpretation, and that in order to affirm the establishment of the helper, the Imperial Court had to abandon the causal link as a necessary condition for the establishment of the aider, so the so-called facilitation formula was proposed. However, under the facilitation formula, it is necessary to clarify what is the result of the facilitation of the act of helping, and Professor Popper believes that the result of helping should be divided into two parts, one of which is to ensure that the commission of the crime is free from various interfering factors, which can be objectively existent, or the principal offender and the helper can be subjectively believed to exist. Any contribution that in the eyes of the principal offender would make the commission of the crime safer, easier, and less risky, is the result of assistance. Another facilitation effect is the reinforcement of behavioral determination, but it is not clear how the reinforcement of behavioral determination should be judged in individual cases, and Professor Popper believes that this reinforcement effect can be considered to exist when the helper and the principal offender confirm his behavioral decision, or when the helper maintains solidarity with him. In the present case, the defendant's contribution to the facilitation of the act was shielding the principal offender because he provided a disguise for the principal offender to prevent the principal offender from being discovered. In addition, under the Germany Penal Code, ensuring that the principal offender does not lose the proceeds of his crime and is not subject to criminal prosecution is also a consequence of assistance.

Thinking and feeling

Professor Popper pointed out that the results of help can be divided into two parts, one is to ensure that the crime is committed free from various distractions, and the second is to strengthen the behavioral determination. I think this can be understood by the knowledge of the relevant criminal law of the mainland. Generally speaking, the condition for the establishment of an aider is mainly that the aiding act intentionally promotes the principal offender to commit an illegal act, and there is a facilitating relationship between the two. There are two conditions that need to be met for the act of helping itself, the first is that the act of helping should have a possible promoting effect, and the second is that the qualified act of helping acts acts on the illegal act of the principal offender. In the first condition, the facilitation of the behavior of help is manifested in two aspects, mainly what we usually call physical help and psychological help, which can correspond to the first and second outcomes mentioned by Professor Popper, respectively. The condition for the success of the aider is that in the process of the dangerous flow of the principal offender's act leading to the result, the aiding act must make a practical contribution before the aiding offender is completed.

In addition, it should be noted that the act of helping should have a possible promoting effect, that is, the act of helping itself must have the risk of infringement of legal interests. If the act of aiding itself does not have the danger of infringing on legal interests, then it cannot play a promoting role, let alone connect with the dangerous flow of the principal act, and the aider will not be established. For example, in the dust shirt case in this case, the defendant only provided the perpetrator with a dust shirt, and this act itself did not have the danger of infringement of legal interests, that is, it did not create a risk that was not allowed by law, and it was impossible to play a role in promoting the principal offender's conduct, so I think the defendant should not constitute an aider.

Content reading: Establish a helping business act - brochure case

Facts: The defendant was a lawyer and acted as legal counsel to a company whose purpose was to induce private investors to participate in commodity futures trading. The defendant produced a brochure for the company, which correctly described the relevant economic relationships and the risks of commodity futures trading. But investors' returns are reduced because only 60% of their investments are actually invested in the commodity futures market, while the remaining 40% is charged by the company as a transaction fee from the beginning.

The Federal Court held that the objective constituent elements of the defendant's aiding and abetting of the crime of fraud had been satisfied, and with regard to the subjective constituent elements, the judgment stated that, in principle, the principle of universal application of all "neutral" business conduct should be taken into account: if the principal offender's conduct was intended to commit a punishable act and the helper was aware of it, then his conduct should be evaluated as an act of assistance. If the helper does not know how his or her contribution is being used by the principal offender, but only believes that his contribution may be used to commit a crime, then his act cannot normally be regarded as an act of aid. Unless he recognizes that the risk of the person receiving his help committing a punishable act is so high that his help is seen as "the promotion of a principal offender with identifiable criminal tendencies". In the present case, the Federal Court held that the subjective elements of the defendant were not met.

Professor Popper argues that in this case, the defendant's lawyer should be held accountable for the client's misuse of the brochure for fraudulent purposes. There is a view that as long as the service provider provides the services correctly, he is not liable for them, and that the abuse of his services by others is a permissible risk for the defendant. The question then arises as to which of the risks of misuse of the service are not allowed for the service provider. Professor Popper argues that the Federal Court's answer to the above question is still not properly known. Some classic acts of help, which do not take into account the relationship with the crime caused or safeguarded, but only in their own right, are usually socially equivalent. Therefore, Professor Popper believes that the question is not whether the act of helping is socially equivalent, typical or routine in isolation, but how closely related it is to the crime it causes. If the correlation is very close and obvious, then the question of the social equivalence or routine nature of behavior does not arise at all. In other words, the act of helping should be embodied in the fact that he directly serves an exclusive principal offender with criminal characteristics, and this exclusivity is lacking if the principal offender's act has other social significance than the criminal significance.

Thinking and feeling

In the pamphlet case, the defendant's act of producing pamphlets involved the question of whether the so-called neutral act of aiding constituted an aider. I agree with Professor Popper that the social equivalence of the act cannot be viewed in isolation, but rather by the close relationship between the act and the crime it causes. But I think this should be more concrete. Neutral assistance generally refers to situations that are formally harmless but objectively promote the criminal acts of others, and most of them subjectively have a laissez-faire mentality, and objectively they are often for the purpose of fulfilling civil obligations or realizing normal market transactions. At the same time, the neutral help behavior has non-specific objects and repetitive content. In my opinion, whether or not an act of neutral assistance constitutes an aider should mainly depend on the nature of the act of neutral assistance, taking into account the state of mind of the perpetrator at the time of committing the act. Objectively, the judgment of the nature of the act of neutral assistance can be based on whether the act achieves a risk not permitted by law and whether the result can be attributed to the actor, that is, whether the act has played an urgent role in promoting the principal crime, and whether the "law permits" can be judged by looking at whether the act of neutral assistance violates specific obligations. According to the relevant provisions of the Criminal Law of the Mainland, the establishment of an intentional crime requires a clear understanding of the object of objective knowledge, and as a type of intentional crime, the perpetrator should be subjectively aware that the principal offender is about to commit or is committing a criminal act, and at the same time should have a volitional element: hope or indulgence.

We can judge the following cases based on the above analysis:

In the pamphlet case, the defendant's conduct was an act of neutral assistance in providing lawyer services, first of all, the act itself, the defendant's duty as a legal adviser was to provide legitimate legal services to others, so that others could know the law, and the content of the brochure produced by the defendant was also correct, which objectively did not exceed the provisions of the Lawyers Law, did not violate specific obligations, and was not prohibited by the criminal law, so the act itself was not criminally illegal and did not play a substantial role in promoting the principal crime; Subjectively, we also cannot know that the defendant was deliberately dissatisfied with the fact that he knew that the principal offender was going to commit fraud at the time of making the brochure, so I do not think that the defendant constituted an aider.

In addition, the book also mentions the case of "a customer who intends to poison his wife in bread to buy bread from a baker", which is an act of neutral assistance in the sale of daily necessities, objectively the salesman's act of selling bread is not prohibited by the law, there is no risk not allowed by the manufacturing law, the principal offender has not yet begun to commit the crime, and the defendant will not subjectively know that the principal offender will commit the crime, and when it is uncertain whether the principal offender has committed the crime, the order of free trade should be first guaranteed, so the defendant in this case should not constitute an aider.

Producer: Zhang Yongjiang

Author: Tan Hongmei, 2023 Master of Laws (Law) student at Xiangtan University Law School

Editor: Feng Xueying

Editor-in-charge: Peng Xiaodi

Review: Zhang Yongjiang

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