Criminal Liability: Authorship and Participation Rules

Legal Regulation and the Accessoriness Principle

Legal regulation: Monosubjective offenses are those in which the intervention of just one person is required for its commission.

The Principle of Accessoriness

The author executes the characteristic fact, while the participant is one who helps someone else to do so. It follows the principle of the "accessory nature of participation," since, as a form of intervention in the act of another, it is not entirely independent. The majority view understands that to allow participation, the fact must be both typical and unlawful.

Following the principle of accessory nature, the crime applied to the author and participants will be the same, even if the participant does not possess the subjective qualities characteristic of the particular crime committed by the author. For the punishment of the participant, it is not necessary that the perpetrator be found guilty and punishable.

Specific Problems in Criminal Participation

• Participation in reckless criminal offenses.
• Participation in intentional-reckless crimes.
• Reckless involvement in reckless crimes (similar problems).
• Negligent complicity.
• Participation in special crimes.
• Possibility of reducing the sentence through an appeal, applicable only to the inductor and the necessary cooperator.

Modalities of Authorship

Concept of Authorship

The author is the individual who performs the typical behavior defined by law.

Author Classes (Article 28.I CP)

• Immediate Author: The person who performs the act by themselves.
• Co-author: The person who performs the act together with others.
• Mastermind (Indirect Author): The person who commits the act through another who serves as an instrument. This includes:
  • By instrument error (unanimous approval).
  • By using a non-liable person or someone acting under threat.

Modalities of Participation

A participant is someone who, without performing the typical act (or attempt), contributes to another or others performing it.

Forms of Participation with Penalties Equated to Authorship

Induction (Art. 28.II. a)

Concept: An inductor is one who intentionally and directly determines another person to commit a crime, without participating in its implementation.

Requirements:

• Direct: The message must be directed to a particular person.
• Crucial: It must give birth to the desire to commit a crime in another.
• Effective: It must result in the start of executive acts.
• Intentional: Intentional cases of "induced excess" are not punished.

Necessary Cooperation

Cooperation is the willful contribution, prior to or simultaneous with the act of another. Acts following the crime fall within the scope of concealment. Unlike the partner, the cooperator does not perform typical acts but contributes significantly to the commission by another.