 |
attack on the individual, but on the legal order as such, it is
agreed that the provisions of criminal law do not belong to civil law (jus
privatum) but to public law (jus publicum). Criminal law now is generally
understood to be that law which is delegated to a superior power — the
state power — for the purpose of punishing crimes committed (jus
puniendi). The sum of the principles at the disposal of this jus
puniendi forms the jus poenale, the jus criminale. Private
law (jus privatum) is to be strictly separated from this. According to the
consensus of opinion, this also includes commercial law and the total of
regulations referring to property, liability arising out of contracts or law.
All concepts such as indemnity based on liability in civil law, have purely
financial legal consequences. If, for instance, shareholders or creditors of a
joint stock company want to lodge a claim against a leading member of this form
of undertaking, they make a private claim, whereas according to modern legal
opinion, only the state is entitled to a demand for punishment. According to
whether a so called delict produces such a claim or merely a claim for
compensation for damage suffered by the person concerned, these delicts are
called crimes, criminal offenses (delicta publica), or private delicts
(delicta privata). Although both these types of so called delicts
constitute legal offenses and therefore must have been committed unlawfully and
culpably, they still differ in their legal consequences i. e., the evil
threatened by the state will affect a criminal while the legal consequence of a
private delict merely leads to the indemnification of the injured party in
respect to financial legal obligations.
It will be clear that nothing
can be done with the concept of “responsibility,” resting on
which the prosecution seeks to throw everything into one pot. It will transpire
further that a legally constituted commercial organization established for
economic purposes, business transactions, cannot be transformed into a criminal
system like a tracing pattern. The juridical concepts, particularly of German
law which may be derived from the commercial legal organization of an
enterprise cannot be converted into criminal guilt even by the prosecution. If
the prosecution has submitted documents relating to German commercial law,
particularly joint stock law and charges which are meant to demonstrate that
from the mere “position” of any defendant within the commercial legal
organization of the firm of Krupp incriminating deductions are to be made it
will have to be the task of the defense to show that economic events can at the
time not at all be confined in such simple schemes, particularly not in those
evolved by the prosecution with the intent to imply consequences according to
penal law. |
168 |
. 
