A Study on the Principal Offender on Crimes Demanding the Perpetrator’s Special Status: The Explanation and Application of Article 31 of the Penal Code

The content of Criminal Code Article 31 of Republic of China received a lot of criticism and review. The main discussion included the legitimacy of fictitious co-perpetrator, the necessity of fictitious participants, the types of identity, as well as the position and interpretation of Article 31, section 1 and 2. This thesis tries to answer the question of the legitimacy of fictitious co-perpetrator, finds the essence of its legal basis from the theories interpreting the concept ""crimes which demands the perpetrator’s special status (Sonderdelikte) "", and then extends fiction range to the application of indirect principal. In addition, the fundamental problem of the distinction between Article 31, section 1 and 2 is the basic orientation of the article and link with status classification. To classify various statuses, we shall scrutinize through individual articles of the Criminal Code, then categorize them to either Article 31 section 1 or Article 31 section 2. Criminal Law Article 31, section 1 and 2 respectively reveal the basic position of ""joint illegality and individual culpability principle"". The sort mode of ""illegal identity"" and ""culpable identity"" is a more meaningful insight; they can also be linked to Article 31, section 1 and 2. However, it does not mean ""illegal status is equal to section 1, and culpable identity to section 2"" because illegality and culpability may affect each other. Further, some crimes demand the perpetrator’s special status. In such situation, the status is an illegal status, and they shall apply to section 1; some including illegal identity and culpable identity shall apply to section 2.