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Accessory and Principal in Chinese Law

Source:
The Oxford International Encyclopedia of Legal History
Author(s):

Arnd Helmut Hafner

Accessory and Principal in Chinese Law. 

The penal liability for offenses committed by two or more persons was graduated in classical Chinese law by the degree of contribution to the formation of criminal intent. One person (never more) was identified as the one who formed the intent, and all others as persons who followed along. The former was treated as the principal, with the full punishment due for the offense in question, and the latter as accessory, with mitigation of one degree.

In general, the provision for accessorial liability in Chinese law applied only to persons who directly participated in the perpetration of crime. Persons who indirectly contributed to the crime without being on the scene were not liable as accessories. They were dealt with under separate provisions in the law code or its substatutes, such as those concerned with sheltering criminals or concealing stolen property.

Traditional Chinese law was extraordinarily nuanced with regard to conspiracy and instigation. The Tang code and its successors explicitly stated that in cases of conspiratorial murder and conspiratorial theft, mere participation in the conspiracy without participation in the perpetration was subject to punishment. Furthermore, several kinds of instigation of others were separately defined as crimes: instigation by false accusation, instigation of persons without capacity for criminal responsibility (those over ninety or under seven), instigation of the production of the poison gudu, and several specific instigative acts defined as crimes by substatutes.

There were several exceptions from the general rule for allocating accessorial liability. First, if it did not harm the victim's health or property, responsibility for a crime committed by family members was limited to the most senior participant. Juniors could go free. Second, for crimes committed by officials together with subjects under their command, the official was punished as the principal, even in cases where a subject formed the criminal intent. Third, many offenses were completely excepted from application of the general rule for accessorial liability. In such cases, the one who formed the intent and the followers were punished equally without differentiation of principal and accessories. This rule applied to all offenses for which punishment was prescribed for “all”—where the individual provision entailed the word “all”—and, in addition, to the following seven offenses: forcible theft, adultery, illegal enslavement, unlawful entrance into imperial estates, escape or desertion, and unlawful bypassing and crossing of checkpoints. Fourth, for conspiratorial theft and conspiratorial battery, the law code explicitly took account of the contribution to perpetration of the crime. In the case of conspiratorial theft, if the perpetrators neither participated in the act nor received any share of the stolen goods, the one who formed the intent was handled as an accessory, and the punishment of the followers was mitigated one more degree. In the case of conspiratorial battery, the person who caused the most harm was punished as the principal. Punishment of the other persons was mitigated by one or two degrees, according to whether they formed the intent or participated as followers. Finally, for many offenses in the substatutes of the Qing dynasty, followers were further divided into accessories of different degrees, and punishments were mitigated by one or more degrees according to their contribution to perpetration of the crime.

Accessorial liability reaches far back in history. At the time of the Qin (221–206 b.c.e.) and Early Han (202 b.c.e.–9 c.e.) dynasties, all perpetrators of a single crime were subjected to equal punishment, irrespective of the degree of their contribution to perpetration or formation of criminal intent. However, there already existed provisions about liability for accessory after the fact, such as for sheltering criminals, etc., and for conspiracy or instigation in the cases of murder, injury, and theft. For these offenses, mere instigation or conspiracy without participation in the act was subject to punishment equal to that of the perpetrators. In other words, the basic range of accessorial liability and its extension for particular kinds of conspiratorial crimes was almost the same as in the Tang code and its successors. The Qin and Han codes merely lacked a formulation for differentiating principals and accessories. Legal differentiation seems to have started with the Jin code (265–317). The concept of formation of intent can be found in the commentary to the Jin code by Zhang Fei. Differentiation of punishment for principal and accessories according to contribution to the formation of intent can be found in the Northern Wei code (386–534).

Bibliography

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              Arnd Helmut Hafner