När ett uppsåt blir två – anstiftan av mord vid error in persona

Detta är en Kandidat-uppsats från Lunds universitet/Juridiska institutionen; Lunds universitet/Juridiska fakulteten

Sammanfattning: This thesis intended to examine a scenario regarding instigation of murder in which the instigated mistook an accomplice of the instigator for the intended victim. The purpose of the thesis was to assess the criminal liability of the instigator in that scenario. Two alternative models were presented within legal doctrine: the model of equivalence, and the model of specialty. According to the model of equivalence, the instigator is criminally liable for the completed crime, whereas the instigator according to the model of specialty is criminally liable for the attempted crime as well as a negligence offense. Thereafter, the thesis intended to investigate and analyze both models in relation to legal certainty to determine which one was to be preferred. Legal dogmatic method was applied to resolve the issue, however legal doctrine was utilized particularly in the absence of precedent from the Supreme Court. The thesis was arranged in a format in which the instigator’s liability in a case of intent was investigated initially. This investigation revealed that intent was not necessarily excluded despite the fact that the instigated confused the identity of the victim. Thereafter, it was uncovered that distinction between error in persona (mistaken identity) and aberratio ictus (misdirected blow) needed to be established to ascertain the impact of the mistake in relation to the instigator’s intent. All authors who presented a similar scenario believed that aberratio ictus was the correct term, however the question of applicability of the models lacked consensus. The model of equivalence was considered problematic based on the principles of legal certainty, as it made remission of the requirement of intent possible. The analysis therefore emphasized that the model of specialty was preferred in the current scenario. In conclusion, however, it was highlighted that the model of specialty could lead to undesirable results, and therefore – like the model of equivalence – was not appropriate outside of the current scenario.

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