| The criminal law scholars in our country and abroad are all pay much attention to the research of the character of instigator. Chinese criminal law scholars as Japan and western countries have been research on the character of instigator for a long time. Germany and the United Kingdom, represented by some Western countries, when discuss the character of instigator have a very different viewpoint, there are two different viewpoints in summery. In some countries, some scholars support the independent character of instigator; other scholars support the subordinate character of instigator. They all have written papers to support their opinions. It is not easy to find which point of view is better. Practice in the national legislation of some country is not entirely consistent with the writing point of view of the country’s scholars. In recent years, from the practice of national laws, national legislation on behalf of the different schools of thought view is not mutually exclusive, but there is a growing sign of integration.China’s criminal law academics have always attached great importance on the study of the character of instigator, and after years of in-depth study, so far instigator theoretically achieved extraordinary academic achievements. At present, on the discussion of the character of instigator is divided to four groups. They are independence, subordinate, duality, abandon.According to China’s theory of the elements of crime, the establishment of solicitation must accord with theory of the elements of crime. However at present our country not have accusation of the solicitation, so we can not tell the elements of crime.Independence is not able to explain instigator which the current criminal law of our country provide. Therefore Independence has been accused that against legal punishment which is included of basic principles of the criminal law by supporters of other academic views.In my opinion, abetting acts is a way of implementing. It is a great social danger of criminal behavior and should be subject to criminal punishment. According to the Criminal Elements Theory, if one is judge to crime it should be comply with the Criminal Elements Theory. At present, these are no charges named abettor in China. Independence is not entirely reasonable to explain the legislative provisions of the Criminal Law, which also support other doctrines of the scholars who are accused of being contrary to the basic principles of statutory crime and penalty of the criminal law. The independent nature of instigator abetting acts is a crime of preparatory acts, and abetting the crime and to prepare tools for committing crimes, there is no essential difference to be punished for this serious act that endangers society is in line with the basic spirit of the Legally Prescribed Punishment. Whether it is or departure from the clear abettor nature of the angle from the sound of the criminal legislation chapter style, instigator out as a separate count of a separate, clearly it is the elements of the crime, in line with the basic spirit of legality can solve instigator of independence doctrine and other doctrines of the controversy. Considering the character of abetting crime, I propose to agree the most reasonable solution that increases a crime named of charges of abettor in the Criminal Law in Chapter VI which named the Disturbing public order. |
