DR GEORG WEHSE FORMER DUSSELDORF UNIVERSITY DR AND NOTZARTZ WHO WORKS FOR ARTZKAMMER

The current form of § 211 StGB was created in 1941 by Nazi jurist Roland Freisler. Before that the differentiation between Mord (murder) and Totschlag (killing) was that Mord was killing "with consideration" ("mit Überlegung") and Totschlag without (StGB 1871–1941). Before 1871 there was no united German state and therefore no common penal code. Many German states defined Mord (murder) as killing "with consideration" and Totschlag without—similar to other continental European countries (today for example the Netherlands). Consideration is similar to, though not same as, premeditation. While premeditation only means that there is forethought or a plan, consideration is defined as a psychological state of mind, in which the criminal is consciously weighing the motives for and against the crime. Under this concept a homicide that was not planned in advance or at least taken into account in advance by the criminal could not be considered to be murder (Mord) under German law (nor would it constitute premeditation). Those were only punished as a grave case of Totschlag. Furthermore, there were disputes as to when and how the consideration should have taken place—before the crime, while committing the crime, e.g. Therefore, this differentiation was considered too vague. The reform was oriented on discussions for the reform of the Swiss StGB, which made the same distinction. It took over the idea and mainly also the wording of the reform commission for the Swiss StGB headed by Carl Stoss in 1896. Also the new differentiation between Mord and Totschlag contains problems. This led to ongoing discussions in the legal community about the wording, the interpretation and also about a reform of the law. There are especially disputes about the question when a motive is to be considered as a base motive[3] and when it should be considered as treacherous (or "by stealth").