【Reading Notes】General Treatise on Criminal Law in Germany: A Case Study (Chapter 28)

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Book information

Author: [de] Ingeborg · Pubo

Publisher: Peking University Press

Translators: Xu Lingbo, Yu Haodong

Publication date: August 2023

In this chapter, the author Rupper discusses how to deal with the two situations of "omission in the form of an act" and "an element of omission in the act of breach of the duty of care".

Case 1: Inaction in the form of an act [Kitchen Fire Case]

1. Brief facts of the case

The defendant left her 3-year-old child alone in the house to talk to the juvenile commissioner, and had not done anything to prevent it from happening again, even though the child had turned on the baking tray on one occasion. And this time the child opened the baking tray again, lit the pieces of paper and caused a fire, and he suffocated in the fire.

II. The Federal Court's View

In that case, the Federal Court held that there was both omission and action in the facts of the present case, and that the judge of fact was empowered to judge, by way of an "evaluative examination", where the "focus of the perpetrator's conduct" was, which in other decisions was referred to as the "reprehensible focus".

Why discuss? When the defendant achieves the constituent elements through both positive and omission, even though he has achieved the constituent elements through positive acts, he may be subject to a mitigated penalty under article 13, paragraph 2, if, after an evaluative review, the judge finds that the focus is on the omission.

2. In the present case, the Federal Court held that the judge of fact had the competence to judge, and that the judge of fact did not and should not have that authority under the law.

3. Ruper's view

In the above case, whether the perpetrator achieved the constituent elements by act or omission to establish the offence depends on whether the perpetrator has violated the general personal obligation to "refrain from harming others" or his special obligation as a guarantor to protect others from the imminent threat of harm.

1. Positive action takes precedence over causal omission

When a positive act has fulfilled all the conditions for the realization of the constituent elements, especially when there is a causal relationship with the result, there may also be an omission that also meets the constituent elements and has a causal relationship with the result. In other words, the causal relationship of positive action takes precedence over omission. (e.g., a breach of a guarantor obligation arising from a previous act is subordinated to a positive act as a secondary ground for punishability because of the lesser wrongfulness of the omission)

However, the premise that a positive act takes precedence over a causal omission is that the positive act is the cause of the result without the omission, i.e., the non-execution of the act is a sufficient condition for the result not to occur or for the entire causal process not to occur

2. The causal relationship of omission takes precedence over action

But in this case, even if the mother stays at home, the same thing can happen if she does not pay attention to the child's movements in time, or if she does not ask a nanny to take care of the child and has not turned off the stove. The mother's act (i.e. leaving the child) does not constitute the cause of the result alone and directly, but is causally related to the result because the act prevents the child's mother from fulfilling her guarantor obligations.

In other words, when the guarantor is obliged to prevent the danger from arising, and the possibility of a later danger is eliminated by positive action (the causal link of the omission will take precedence over the act), although he has created sufficient conditions for the result to occur through the positive act, the act is unlawful only if he has the obligation to prevent the result. Take the above example: if the mother who leaves the child alone in the house for several hours is not the guarantor of the child, she has no obligation not to leave the child alone in the house, the mother's conduct. In fact, it is an omission to be carried out in the form of an act.

Returning to the case, the defendant in this case should not be found guilty of intentional homicide by killing his child in the form of a positive act (i.e., leaving the house), but should be found to have caused the child's death through his omission in breach of his duty. In the present case, the judge did not have the discretion to determine where the focus of condemnability should be through an evaluative review or a weighing of the two ways of conduct that existed simultaneously.

Case 2: The act of the duty of care includes the element of omission

【Surgeon's Case】

In almost all cases of negligence, there is an element of omission, but the existence of this element does not affect its recognition as a positive act.

1. Brief facts of the case

The defendant was the director of the Department of Cardiac Surgery at a university hospital and had undergone a number of heart surgeries. As the defendant was suffering from hepatitis B, he was infected to a number of patients during the operation. Many doctors and staff at the hospital are also at risk of being infected by the hepatitis B virus and potentially passing it on to other patients during surgery. The defendant is accused of failing to attend the preventive tests and precautions required by the hospital by which he could have prevented the contagion, or at least could have known that he was infected, and if he had known that he was infected, he would have realised that he could no longer proceed with the operation.

2. The focus of the dispute in this case

The criminal law condemns the doctor for actively performing an operation that led to the infection, or for his omission in the routine medical examination of medical personnel.

3. Judgment of the Federal Court

The point that is reprehensible is that surgeons who were not allowed to perform surgery because of infection performed the surgery anyway. Moreover, the omission of the physical examination is not punishable in itself, but only the operation in the case of infection that leads to punishability. The judgment also held that in cases where the defendant was guilty of conscious negligence or even intentionally committed, the emphasis of the punishability lies in the defendant's operation in an infected state, not on the defendant's omission in the necessary medical examination.

4. Internal reasons for the dispute

The distinction between act and omission is particularly difficult in cases of negligence, including in this case, because negligence inherently contains an element of omission, which should not be examined independently and should not be regarded as the basis for an omission. The omission and negligent positive act are intrinsically and necessarily linked, but this does not alter the positive character of the act.

5. Ruper's view

The Federal Court was correct in finding that the defendant was guilty of a positive form of negligent injury

A denial of compliance is included in all breaches of the duty of care, so that every breach of the duty of care can be regarded as an omission. In that case, the defendant failed to perform preventive checks and precautions to confirm whether he was infected, and the element of such omission was included in all breaches of the duty of care. However, this factor does not affect the fact that the positive act itself has the attribute of a breach of the duty of care, and that this attribute is also the cause of the result.

Every person who violates the duty of care can be blamed for omission because he does not organize the nature of the breach of duty of care in his conduct, and this element of omission always takes a back seat to the act.

Producer: Zhang Yongjiang

Author: Xiong Yuanyuan, 2023 master's degree student in criminal law, Faculty of Law, Xiangtan University

Editor: Wu Aijia

Editor-in-charge: Gong Yi

Review: Cheng Bo

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