Prävention als Zweck und Rechtfertigung des modernen Strafrechts?

Abstract

While the theory of special prevention and the theory of passive general prevention are related to the goal and legitimacy of criminal punishment, the theory of positive general prevention is directly related to the goal and legitimacy of the modern criminal law. Until now we regard the theory of positive general prevention as theory of criminal punishment. But in my opinion we should consider the theory of positive general prevention as theory of the modern criminal law. The theory of positive general prevention as theory of the modern criminal law is related to the theory of the norm and personal responsibility (personal obligations). Günther Jakobs asserts that we should use the modern criminal law more actively as ‘prima-ratio' tool of society control. He proposes the modern criminal law as ‘rules that determines the identity of society’. He uses the term of personal obligations. The theory of positive general prevention makes the expansion of the modern criminal law possible in three distinct areas; Rechtsgut, Gefährdungsdelikt, Zurechnung. But Cornelius Prittwitz takes precautions against the theory of Günther Jakobs. He opposes to the idea that the modern criminal law is used as ‘prima-ratio' tool of society control. He previses the theory of positive general prevention as the theory of the modern criminal law. He thinks that the theory of positive general prevention is related to the modern ‘Risikostrafrecht'. Under the condition of risk society the modern 'Risikostrafrecht' becomes the massive control law that causes many problems in the aspect of effectiveness and legitimacy. In my articles I compares two important views of the modern criminal law.