Research On Punishment Of Attempted Instigation

Research on punishment of attempted instigation is not simply combines theinstigator and attempted offense theory, but discusses the penalty of unfulfilledinstigation. The research of the punishment of attempted instigation requiresexamining the instigator’s acts at first. In fact, those acts are the manifestation ofindividual crime in preparation. Therefore, it is unreasonable to doing research neitherfrom the perspective of the arguments from instigator, nor in the perspective ofestablished joint offense. Since instigated attempted acts have high risk that will harmlegal interests, it is necessary to look into the development of modern criminal policywhen discuss the punishment standard. Clarifying the newly relationship between thecriminal justice system and criminal policy will do favor to explain the rationality ofpunish the attempted instigation. By learning the theoretical study and criminallegislation in the typical Civil Law country——German, we can further define thescope of the punishment of attempted instigation in paragraph2of Article29ofChinese Criminal Law, and then demonstrate the reasonability of punishing attemptedinstigation as preparation offenders thoroughly. This article consists three parts:Part I defines the exact conception of "attempted instigation" and contemplatesdifferent situations of attempted instigation. After analyzing paragraph2of Article29of Chinese Criminal Law, which is about attempted instigation, this part discusses thebasic issues of attempted instigation in detail. Furthermore, this part can be dividedinto three section: first, the paragraph2of Article29of Chinese Criminal Law is notabout classic joint offense; second, the act of attempted instigation should be treatedas act of perpetrator; third, the defects of current legislative causes the imbalance ofpunishment and that can not be the argument of denying punishment of attempted instigation.Part II describes the different theories on paragraph2of Article29of ChineseCriminal Law and different theories on attempted instigation. Then this part makes acomprehensive assessment on all opinions from four angles including: the TheoryIndependence of the Instigator, the Theory of Subservience of Instigator and UnitaryPrincipal Offender System. After giving Comments, this part establishes a series oftheoretical viewpoints: first, the attempted instigation should not be subordinate tojoint offense, but be considered as a preparation offenders; second, it is notappropriate to discuss the punishment of attempted instigation in the perspective ofinstigator’s nature, giving punishment is not contrary to the theory of Subservience ofInstigator; third, the true meaning of the "instigator" of paragraph2of Article29ofChinese Criminal Law is “instigated actors”. Above all, this part insists the standpointof giving punishment to attempted instigation, which is considered as an essentialmanifestation of a new relationship between criminal justice system and criminalpolicy.Part III further demonstrates the rationality of judging the attempted instigationas preparation offenders of individual crime. Then introduces and analyzes thetheoretical study and criminal legislation in German, and compares with China’sCriminal law provisions. Based on above, this part further instructs that sticking topunishment of attempted instigation is consistent with the punish principle ofpreparation offenders in China. Finally, this part discusses the situations of identifyingattempted instigation, learning from the existing Germany theories aboutestablishment standards of attempted instigation, and focusing on the objectiveelements and subjective elements which are necessary to establishing attemptedinstigation.