Comparison of Criminal Liability Regulations for Theft Committed Jointly Comparison Between the Old Criminal Code and the National Criminal Code (Focus on Article 477 of the 2026 Criminal Code)

Abstract

 This study aims to analyze the regulation of jointly-committed theft under the old Criminal Code (Article 363) and the National Criminal Code (Article 477 of Law No. 1 of 2023, effective 2 January 2026), to examine criminal liability thereunder, and to compare both codes through the Theory of Criminal Liability, Participation Theory (deelneming), and the Principles of Justice in Islamic Law. The findings show that the old Criminal Code treats plurality of perpetrators as an aggravating circumstance (gequalificeerde diefstal) relying on Articles 55–56 for participation, while the National Criminal Code offers a more integrative and humanistic construction. Liability under Article 477 requires three cumulative conditions: a theft act, involvement of two or more persons, and shared criminal intent (bewuste samenwerking), within a dualistic framework demanding differentiated responsibility for each perpetrator's role. The study employs three theories: the Theory of Criminal Liability (geen straf zonder schuld), Participation Theory distinguishing each perpetrator's degree of involvement, and the Islamic Theory of Justice (العدل, al-'adl) converging with Rawls's justice as fairness all affirming the principle of individual and proportional liability, consistent with the Islamic concept of الاشتراك Fi الجريمة (al-ishtirak fi al-jarimah) in criminal jurisprudence.