Abstract
In the Qing Code, the article distinguishing principals and accessories in joint crimes (gongfanzui fen shoucong 共犯罪分首從) divides the crimainals into the person who formulates the plan (zaoyi 造意) and the accomplices (suicong 隨從). This contains a unique legal philosophy. In modern criminal law theory, instigators and principal offenders are determined based on personal responsibility. The existing research on Chinese legal history thus tries to explain complicity in premodern law according to this thesis, that is, from the perspective of personal responsibility. This produces two representative theses, namely “the instigator is the person who is called zaoyi” and “in principle, the person who is called zaoyi should commit the criminal act.” However, these principles do not fully explain the phenomenon of the person who formulates the plan but does not commit the criminal act in Qing law. Moreover, they are not unproblematic. The scholarly world should change its approach and rethink the phenomenon of complicity in premodern law from the perspective of group rather than personal responsibility. In Qing law, the nature of the person who formulates the plan but does not act and his (or her) relationship with the mastermind who hides behind the scenes should be considered in terms of group responsibility. From this vantage point, the person who formulates the plan but does not act is a member of a criminal group with a single mind and a single intention. Moreover, he (or she) first proposed the criminal intention.
Not all the masterminds who hide behind the scene are the people who
formulate the plan but do not act. Some of them are not members of a
criminal group, either because they are not of a single mind and intention
with the other people in the group, or because legal concepts place them
outside the criminal group.
Keywords
Qing Code (Da Qing lüli), formulator of a crime (zaoyi zhe), mastermind behind the scenes, complicity, group responsibility
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