(Med)gärningsmannaskap - En komparativ studie av kriterierna för (med)gärningsmannaansvar

Sammanfattning: The Swedish law has not set forth any evident and accurate criteria for (co-)perpetration. The minimum requirement for (co-)perpetration in Swedish law is support/encouragement and a decisive influence on the occurrence of the crime. Should the person who is the “mastermind” behind the crime but is not physically present or hasn’t physically contributed at the commission of the crime be regarded as a (co-)perpetrator or a secondary party? The comparative method of criminal law will be used for this essay to examine and compare the criteria for (co-)perpetration in Sweden, England and Wales, Germany and the Netherlands. Through this method it will be possible to recognize similarities and differences between these legal systems but also find how these countries have solved the problem that Swedish law experiences, and use it as inspiration for improvement of the domestic law. In conclusion, it can be said that this comparison has led to the understanding that none of the countries have satisfying and evident criterion for (co-)perpetration. However, it might not be possible to set forth evident criteria for (co-)perpetration that will be applicable in every situation that may arise. Therefore, it is better to establish some starting points and circumstances which can indicate (co-)perpetration in a case. Such circumstances would help the Swedish courts in their evaluation of and the foreseeability of (co-)perpetration. To summarize my conclusion, these are some of the experiences and inspirations from the different countries that I believe the Swedish law could benefit from: • Adopting a legal definition of (co-)perpetration in the Swedish Criminal Code (brottsbalken (1962:700)). • There should not be any requirement for physical presence or physical contribution at the commission of the crime, but it could instead be compensated by a substantial contribution at the preparatory stage of the crime. • For instance, the equal sharing of the booty and/or the substantial contribution at the preparatory phase of the crime could be circumstances which indicate (co-)perpetration. • In order to simplify the evaluation of (co-)perpetration, the Swedish law could let the decisive criterion for perpetration be control over the commission of the offence and/or power/authority over the person who commits the crime. The reason for being regarded as a (co-)perpetrator in these cases is because the person with control or power could actually have stopped the criminal act from occurring. Consequently, it is important that the defendant receives a “fair label” which corresponds with the blameworthiness of the defendant’s participation and role in the crime. Hence, it should be possible to convict the person who has had a prominent and decisive role in the crime as a (co-)perpetrator, even without physical presence and physical contribution during the commission of the crime.