Contemporary German Criminal Jurisprudence

서지정보

· 발행기관 : 한양대학교 법학연구소
· 수록지 정보 : 법학논총 / 30권 / 4호 / 429 ~ 453페이지
· 저자명 : Eric Hilgendorf

초록

German criminal law theory has become highly influential on a global scale. Not only Spain and Latin America are oriented on the German model, but Turkey as well, which for its part is beginning to extend its criminal law thinking to Central Asia. Yet one of the most remarkable things is how the German criminal law theory has spread in East Asia where it moved from Japan to Korea and is finally reaching China. Naturally, there will be varying degrees of departure from the original German model in all of these countries; such differences being predominantly in the set of norms (especially in what known as the special part of a criminal code) as well as those based on each lands unique history and national culture.
This article attempt to analyse some of the strengths, but also weaknesses of the German criminal law jurisprudence. The strengths of German criminal jurisprudence can be found in its theory, which allows even complex questions of law to be clearly and understandably structured and resolved. In this way, the decisions of those applying the law become foreseeable and rationally verifiable, while the likelihood of political influence being exerted or of judges using their own personal values and ideas in deciding legal issues is constrained. These are the virtues that have made German criminal law theory a global export hit.
One weakness of the German criminal law theory is the way it has sometimes taken the doctrinal analysis of detail so far in fact that it has practically lost all its meaning. A second weakness is the fact that although criminal law doctrine enjoys the greatest acclaim within the field of law, the public and the political leadership too often neither take notice, nor avail themselves of it or its most important messages. This would explain the apparent erosion of the publics willingness to defend the core constitutional elements of criminal law. This is especially true with regards to the changes that European law expects of German criminal law.
In the future, German criminal jurisprudence will have to deal much more with the academic work in criminal law being conducted outside Germany, such as in East Asia, in the Spanish‐speaking world or in Turkey. And so, the future belongs to comparative criminal law. This has nothing to do with confrontation, but everything to do with partners. According to my optinion the time of an only one‐sided reception of German criminal law theory is over. Instead, the future belongs to comparative work among equals.

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