On The Nature Of The Instigator

The research of the nature of instigator is to answer the question of that what kind of relationship between the instigator and being instigator. Based on social conditions,different countries differ from different legislative traditions. The nature of the instigator of the two legal systems in the legislative, judicial and theoretical definition is different. At present, China’s mainland scholars research the nature of the instigator based on the theory of German and Japanese civil law criminal law theory. The problem is that our national legislation is different from the civil law, judicial reality.The theories of subordinate quality of complicity and independency quality of complicity is based on the Differenzierungs System, but China’s criminal law has adopted Einheits system, apply the civil law theory to explain the nature of the practice abettor ignored the particularity of our system. Although it is comply logical reasoning in theory, but it can not objective and overall to grasp the truth of history. The theory is not in line with "consistent with the history and logic," so it’s difficult to say properly.The nature of instigator ultimately depend on each country’s history and tradition, only the discussion based on the traditions of our society and legislative of judicial practice can accurately define the nature of instigator. Therefore, the study of the problem must proceed from reality and seeking truth from facts, based on China’s legislative, judicial actual situation, to analyze specific issues, focusing on the combination of theory and practice, history and logic is consistent. Grasp the legal phenomenon from the standpoint of historical materialism, recognizing the social and economic life of the restraining effect on the law, to grasp and reproduce specific traditions of our society under the objective existence of legislation and judicial phenomenon, rather than in isolatedly talking. Many points of Marxist thought in criminology is instructive for the topics of study, for example, Marx and Engels on the "crime is a relationship between the isolated individual struggle against the ruling","crime is a social order in contempt most obvious extreme performance,"the thesis essentially elaborated on what is a crime. This paper defines the thesis the concept and abettor the punishment. This emphasis on the use of Marxist jurisprudence "Historical Materialism" Methodology and Legal Studies of the "empirical analysis","normative analysis" approach, in-depth China’s legislative, judicial practice of the actual, to identify and analyze the nature of the instigator. This paper discusses the Marxist criminology and its methodology revelation about our country and extraterritorial nature abettor legislative, judicial investigation and theoretical research status, and is currently on the instigator of the various doctrines assessment and criticism, propose amendments independence of the instigator,then explores the instigator of the crime constitution and legislation.Innovation of this paper lies in the following aspects:First, explores the concept of instigator according to the thesis of crime of Marx and Engels, meaning advocated abettor define reality without their criminal specification. According to the principle of unity of subjective and objective Marxism advocated instigator penalty based on subjective and objective dangers of vicious criminals attempt to create crime, and abettor is an attempt to create criminals, instigator is the essence of a particular manufacturer of mens rea.Secondly, according to Marxist philosophy expounded general and special relationship between the principle of common and individual characteristics,this paper investigate the nature of instigator of the legislative, judicial and theoretical research. Comparative analysis to explore the reasons why it’s different in the two legal systems, the reason is due to different legislative and judicial traditions. Further claims to adhere to materialism, to analyze specific issues, correctly grasp and reproduce the tradition of our society the objective existence of specific legislation and judicial phenomenon, rather than isolated, static concept itself from the instigator.Third, critically analysize various theories of China’s criminal law scholars on the nature of the instigator, advocated the independence of instigator our country’s criminal law. Law logical deduction and the reality of the development of law should be consistent with the definition, the nature of instigatorr should be knowledge from the country’s criminal law. China’s criminal law on the issue in the crime of committing a single system, the nature of amendments independence of instigator corrected based on the assertion of our country, in line with our legislative and judicial realities.Fourth, discussed instigator of crime constitution and legislation. For example, advocates the object with diverse characteristics; including criminal behavior and specific offenses based on the criminal policy. In terms of legislation, proposed to remove Penal Code Article29, paragraph2, from section of "joint crimine", as a separate crime provisions in the Criminal Law. The author put forward suggestions:Modify Article29, paragraph2;Creat a new crime of "Instigate " as Article295.a.; Creat a new crime of "Crime of instigatting suicide" of article232.