Incitement for crimes penalised only as intended

Abstract

 Although “culpa theory” imposed by Lawmaker in current Criminal Code differs from approach seen in CC from 1969, changes that should be a logical consequence of the change was ommited. Currently, literally meaning of art. 18 § 2 CC leads to conclusion that person inducing another to commit a prohibited act should be released from liability, if person who commited was without intent, and prohibited act is prohibited only as intended. This conclusion cannot be accepted due to the base of prohibiting the instigating crime. It stands against legal system values as well. There are few possible solutions. First, considering ‘prohibited act’ in subjective manner. Second, by the way of logic, consider ‘prohibited act’ as an act limited only to objective characteristics (which stands against art. 115 CC). Third, lack of intention on the side of main perpetrator, can be, by the art. 21 CC, used only as circumstance that can release only him from liability. In other words, lack of intention on the side of person who commited the crime is unimportant when considering liability of person who induced. No matter which of the above mentioned possibilities will be choosen, on the ground of the current CC it is impossible to classify liability of instigator without mistake.