Research On The Punishment Of Attempted Instigates

It’s highly controversial in our country if attempted instigation behaviors should be punished, no matter from the criminal law theory or in the criminal judicial practice. Due to the attempted instigation concept and abettor character have the close correlation, at present our country criminal law theory used to discuss the problem in the abettor’s character, namely to judge from logical deduction of abettor properties or independence of attempted instigation behaviors whether it can be punished or not. However, it’s seem that this simplistic thinking does not provide any method to simplify the problem for the theory of criminal law and criminal justice practice, but the debate seems to have been growing in intensity. Therefore, it is necessary to review the theory of this issue, and seek reasonably a criterion to punish attempted instigation. Based on this consideration, this article has launched to discuss the essence of being punished of attempted instigation. There are four parts in this text:The first part is the discussion of logical premise for the punishment of attempted instigation, i.e., clarifying the concept of attempted instigation. From the present theory of criminal law, it is considered from below:the needs of discussion of attempted instigation, the standard concept of attempted instigation, the habit of normative concept of professional language usage and the exchange of Chinese and foreign criminal law academic that attempted instigation concept should be defined as" the instigator have implemented a solicitation, but the instigated person has not implemented the instigation crime", which includes " failed to" and" without the effect of abetting" two kinds of situations. But the" failure of the abettor" and" without the effect of abetting " is the refined abstract concept of the fact type, and the analysis of specific facts type contributes to the discussion of attempted instigation’s punishability.The second part is the certain of essence of punishment of attempted instigation. It should be said, the abettor’s character is regarded as the preposing problem’s insight of the attempted instigation punishability, which is too formal to illustrate the basis of attempted instigation punishable, also exist obvious error in logical argumentation. The criterion of attempted instigation punishabilty should be sought from below three sides:"if there is the risk of invading legal interest","if there is the necessity to punish form criminal policy" and" if there is the basis for penalty ". Based on the three basic considerations, attempted instigation in our country obviously should be punished. But certainly attempted instigation punishability does not mean that the abettor’s character takes on abettor independence. From the attribute theory and China’s current criminal law, it still can be considered that the current criminal law of our country take the position of attribute theory, while on the paragraph2, twenty-ninth in " criminal law" the attempted instigation penalties is an exception from attribute position.The third part is about the scope limitation of attempted instigation punishment. Although the attempt instigation in China can be punished, but from the restraining concept in criminal law and the proviso of the penalty in thirteenth of "criminal law", the range should be somewhat limited, namely we must insist on the position of relative penalty. The attempted instigation should be specific from the nature of the content and specifically type:based on the former judgment, attempted instigation of punishment should be limited to a felony (minimum statutory penalty of three years imprisonment) of attempted instigation; based on the latter consideration, the instigator’s instigation have not yet reached to the instigated person, or is the instigator of abetting means has reached to the instigated person but not enough to cause the instigated crime, the attempted instigation should not subject to criminal liability.The fourth part is the review of the second paragraph of Article29in the Criminal Law of PRC. From the theory analysis of attempted instigation of the punishment, the second paragraph of Article29in the Criminal Law of PRC should be a legal fiction in the legislative attribute, so cannot be applied to the attempted application. Although there is some conflict between the second paragraph of Article29and the nature of attempted instigation’s preparatory crime, but should not be used to deny its preparatory crime nature, but in favor of attempted crime. It should be said, the second paragraph of Article29is not perfect for attempted instigation punishment:one is that the scope of punishment is not defined, against the restraining of criminal law; the two is that the principle of punishment configuration is not reasonable, against the adaptation of offence. From some opinion of the present theory of criminal law perfecting the attempted instigation regulations, the amending of the second paragraph of Article29in the Criminal Law of PRC should be appropriate. Combination the analysis of attempted instigation punishability theory, the second paragraph of Article29in the Criminal Law of PRC may be amended as:" if the instigated person does not commit the instigated crime, and the crime of instigation is sentenced for more than3years of fixed-term, the crime of instigator can be reduced or exempted from punishment according to the crime of instigation. But the instigator of abetting means have not yet arrived the instigated person or instigator of abetting means has reached the instigated person but not enough to cause the instigated crime, not punishment."...