Theoretical Issues Of The Abetting Attempted

Instigator is an accomplice in a joint crime. Compared to other types of crimes, instigator has an obvious feature of specialty and complication, and is also a key problem in the theoretical system of criminal law. The theoretical problem about instigation attempt relates to not only the joint crime theory, but also the suspended state theory of intentional offense. Thus the theoretical points concerning instigation attempt are great in quantity and controversial. The controversial focus of domestic academic is on the different interpretation of Section2, Article29in Criminal Law. The huge divergence in academic leads to the loss in legal practice when the instigation attempt is involved in specific cases and the awkward idle position of Section2, Article29. A study of the theoretical problem of instigation attempt has a great significance on both in academic and legal practice.Before the discussion of the nature of instigator, this essay will capture the relation between the accomplice and principal offender. Only under the condition of admitting the distinguishing system in legislation will the relation between accomplice and principal offender have its value. The controversy about the nature of instigator is caused by masses of theoretical opinions. This essay will compare and analyze those opinions and propose the opinion insisting on accomplice’s subordination. The persistent on the view of subordination, extreme subordination and critical treatment of accusation subordination is the precondition of the confirmation prerequisite of the instigator. The relevant issues of instigation attempt theory discussed in the paper are theoretically based on the accomplice’s subordination theory.Under the condition that accomplice’s subordination theory is taken in the confirmation of instigator, this paper will discuss the definition and instigation attempt, the essential elements of instigation attempt and the distinguishing feature of instigation attempt. The essential elements include the implementation of instigator, the incompleteness in instigation attempt and the will factor of instigation attempt. This paper capture the nature of instigation attempt and intends to confusion in similar concepts in academic via the comparison among the instigation attempt, attempted instigation, instigation preparation and instigation termination.The punishable issue of instigation attempt is an important subject in the research of instigation attempt theory, related to the foundation of punishment on the instigator and attempted criminal. Using the comparison approach, this paper believes the foundation of punishment on the instigator should take the legal interest violating theory or threat theory and the foundation of punishment on the attempted criminal should take the eclectic attempt theory thus confirming the foundation of punishment on instigation attempt.In order to make the theory guide the practice and make the practice verify the theory, this paper intends to interpret the provision of Section2, Article29of Criminal Law and forms a discussion according to different situations via promoting the view of instigation attempt theory. After the review of the current legislation regarding to the instigation attempt, I agree with the four elements theory of instigator on the base of the accomplice’s subordination theory in this paper, and proposes legislation suggestions about instigation attempt issue. I hope the punishment rules of instigator can be specified so that the criminal legislation in our country can be more humanized and operational.