Who is the murderer in these cases?

[Soulforged]

Thank you for your interest, Soulforged. I´m not quite sure what you are asking for. I´ll summarize the three forms of intent in German law. I think the English word "intent" is not quite the same as "Vorsatz". Therefore I will use this term instead by now.

I was just asking for the form in how the dolus is seen on there. The theories exported here, mainly by Jacobs have changed it all really. But I'm talking way before that, you said that the dolus requires intent (Vorsatz, I thought it was Geischt ). Here it's teached, I think that mainly because of Welzel, that the intent is not a requirement of the dolus, just the knowledge.

dolus directus I

This is the form where the volition of the offender is directed at breaking a criminal law. The action is motivated by the result.

dolus directus II

Here the offender knows for sure that the result of his action will break a criminal law. His interior will is irrelevant, as he obviously has decided to act anyway.

dolus eventualis

The offender thinks that it´s possible/likely that he will break a criminal law. The obvious difficulty is to distinguish this from negligence.

A resume of the theory of the crime in the Backroom, nice!! At least in the subjective type...

If I drive through a town with 150 km/h and kill another person, is this still negligence or was the likelihood of the accident so high that we have to call it dolus eventualis? There are dozens of opinions about this in scientific literature. I could tell you more, if you want to.

No thanks man, as much as I'll love to exchange knowledge it's out of topic, and besides I was pointing out a very specific thing.

You mentioned Welzel. His merit was that he developed the modern understanding of Vorsatz. This led to the splitting of the "Unrechtsbewusstsein" from the Vorsatz. This means: Vorsatz only has to contain the element of the criminal law. But the knowlegde that there is a specific criminal law (Unrechtsbewusstsein) is not part of Vorsatz. Many professors opposed his idea. However the discussion about this matter ended in the 1970s. The German legislative followed Welzel´s idea. The new § 17 S.2 StGB made clear that Unrechtsbewusstsein only needs to be potentially present.

Thanks. I knew that Welzel revolutioned the penal matter. Now I remember the name of his pupil, he was Struensse.

An important consequence is that Vorsatz now belonged to the elements of the offence. Formerly it was considered as a part the guilt. As you may know in German law the test if someone is to be punished, is done in three steps:

1. Tatbestand (elements of the offence)
2. Rechtswidrigkeit (Are there any justifications?)
3. Schuld (I call it guilt, nor sure if it´s correct in English)

Yes we've those three basic steps, following the same model, but with other names. Elements of the type objective and subjective(Elementos del tipo, objetivo y subjetivo). Antijuridicity (Antijuridicidad). And culpability (culpabilidad). However given to some compositions of the penal law here, we've a fourth step that is discussed as part of the offence or as an extra, out of the model, we call it "punibilidad" (the ability to receive punishment)

Is this a theft? To determine this we have to know what A has in mind when he´s taking the bike. If A wants to keep the bike for himself, it´s a theft. If he wants to return it to B immediately, it´s not a theft. The Tatbestand is meant to decribe the crime itself in a sufficient way. Therefore it is necessary to take the internal circumstances of the offender into account.

An intensive course of the theory. This is what I was talking about with Jacobs and Sancinetti (argentinian author). Welzel was a finalist, this two are the principal exponents of the new theory, wich we could call "subjectivist" based upon the idea of separation between the subject and the result in the external world.

Well hopefully I was able to express what I wanted to tell
If you want some more info on specific matters, just ask.

No thanks man...But if I want to bother someone with technical terms on german, when they (the university) force me to learn it then I'll come at you... Just joking.