Factual Mistake Of Principal Offender And Instigation Liability

Factual mistake of principal offender is a condition in which when the principal offender perpetrates a crime, inconsistency occurs between subjective understanding and objective fact, leading to deviation of consequence from the initial intent of the instigator. Such inconsistency could occur both in the same constitutive element and in different ones, raising a problem about the liability of the instigator. The problem involves, first, the relation between the perpetrator and the instigator and the relation between the instigation and the consequence resulting from the perpetrator’s conduct. In the area of accomplice theory, this problem is in nature questioning the nature of accomplice. Second, how instigation should be evaluated from legal perspective and the liability of instigator. Third, once instigation has been constituted, whether the instigator should be liable for the extra-intent consequence and if so, what kind of accountability should there be.For the time being, seldom research on questions above-mentioned has been made in Chinese criminal law area, while such research in German-Japanese counterpart is plentiful. Moreover, from the perspective of interpretivism, accomplice in China are classified into "perpetrator" and narrow-sense accomplice (namely, accessory and instigator), so German-Japanese study is helpful to our theory. Taking these into consideration, this paper made overall analysis of German-Japanese accomplice theories, tried to find a reasonable path in figuring out how to evaluate the instigator when mistake occurred in principal offender’s perpetration.This paper tackled the problem in five chapters:First, the paper made an analysis of theories about accomplice nature. At the beginning, an introduction was made to German-Japanese accomplice independence and subordination theories and Chinese accomplice duality theory, and the advantages and disadvantages of them was drawn out by a followed compare, which set the stand of this paper:restrictive subordination. Then a comment was made on German-Japanese theories of the basis of accomplice accountability, concluding that the amended causation theory and the restrictive subordination theory shares something same.Second, the paper stated the general principle of fact mistake. The question in this paper is based on the general theory of separate crime. In this chapter, by observing the category of mistake, the extension and classification of factual mistake, and the principle in such mistake’s treatment, this paper made the category of factual mistake clear and set reasonable principle for instigator’s liability.Third, the paper discussed the influence of the principal offender’s homo-element factual mistake on the instigator’s liability. Based on the structure of target mistake and combating mistake, by comparing the different treatment in various legal systems, this paper analyzed the liability of instigator under such systems.Forth, the paper discussed the influence of the principal offender’s trans-element factual mistake on the instigator’s liability. At beginning, a re-interpretion of Article 29 (2) of Criminal Law was made, indicating no obstacle for the adoption of restrictive subordination in current statutory. Then the trans-element mistake was divided into mistake of homogeneity-element and heterogeneity-element. Then the liability of the instigator under such two divisions was discussed respectively.Fifth, the paper discussed two special conditions of principal offender’s factual mistake. The first one is complicated factual mistake, and the second one is appended constitutive element. On the stand of subordination accomplice, this paper analyzed the instigator’s liability under the two above-mentioned conditions.