Discussion on the Problem of Misunderstanding in Mittelbare Täterschaft

Abstract

The problem of misunderstanding in mittelbare täterschaft (indirect offence) causes a big controversy in the identification of the indirect offenders. Plenty of researches have been done around this issue by scholars, and many different views have been brought up. Among them, the focus of controversy is mainly about two particular situations: the user having a wrong knowledge about the nature of the tool being used, and the person used becoming an insider halfway through the crime. Through the analysis of existing representative principles and perspectives, the authors believe the user should be considered as constituting indirect offence if the user’s practice is equivalent to an instigator, with the mean of an indirect offender, due to misunderstanding; similarly, the user should also be punished as an indirect offender if the user’s practice is equivalent to an indirect offender, with the mean of an instigator, due to misunderstanding; on the other hand, punish the user as an indirect offender under the circumstance when the innocent person used becomes an insider seems reasonable. By discussing the problem of misunderstanding in indirect offence, we hope we can benefit from it for further research on problems relevant to indirect offence.