| Attempted instigation is not an unknown concept in criminal law theory,especially in the field of criminal law theory of civil law countries.For example,attempted instigation concept and attempted instigation punishability,especially the latter,although domestic and foreign scholars from different angles,put forward various theories to prove the penalty or not be punished,but due to the limitations of the theory itself,the problem has not been solved thoroughly.With the more common cases of attempted instigation in reality,the question of whether it can be punished or not is also necessary to be clear in order to guide the judicial practice.This article is roughly divided into six parts:First of all,it is the basic concept of attempted instigation.Based on the concept of their views in explaining attempted instigation,criminal law scholars in Germany and Japan as well as Taiwan scholars in mainland China scholar,through comparative analysis,summed up the best sums up the connotation and extension of the attempted instigation is a viewpoint that people accused of abetting attempted instigation is instigated the act to end attempted instigation and then pointed out the similarities and differences between the related concepts,clarify the boundaries between each other,hoping to break the attempted instigation and abetting attempted instigation and other related concepts confused situation.The second part is to sum up the present situation of the impunity of attempted instigation in the current legislation and judicial practice.Through the introduction of the continental law system and Anglo American law system and the relevant legislative provisions and judicial practice of the attempted instigation,found in legislation,most countries have adopted an evasive attitude on issues related to the attempted instigation,handed over to the judge’s discretion,there are very few continental countries such as Greece and Poland,related to the the punishment of attempted instigation in the criminal law,but the position is different.In judicial practice,no matter the continental law system or the Anglo American law system,it is generally biased towards impunity.China’s criminal law in the attempted instigation problem is temporarily in a blank state,in practice are not punishment,but in 2012 amendment to the Criminal Procedural Law banned investigators in order to ascertain the case and induce others to commit a crime,whether it is provided some support to the attempted instigation punishment,yet to be elegant.The third part is standing in the position of the theory of accomplice,from an accomplice from the property and independent accomplice,common criminal acts together and said that the two point of the attempted instigation punishability of investigation and analysis,found that no matter what point of view,can not give the exact answer to the problem of unity,and the discussion on the nature of joint crimes can be the punishment of attempted instigation is only superficial and difficult to provide essential basis for conclusions.The fourth part is to find out the root of the problem in view of the defects of the existing doctrines,and then put forward some views on the problem of the instigation of the attempted instiThe fourth part is to discuss the punishable problem of attempted instigation from the point of view of the essence of the criminal punishment.The theory involved in this part is very complicated,including the theory of liability complicity,illegal accomplice and causality accomplice.In the theory of causality and accomplice,it can also be divided into pure causation,correction and compromise.Based on the description of these theories on the basic viewpoint,and has carried on the analysis,pointed out emphatically point defects and defects existing in each logic,finally according to the theory of accomplice still cannot attempted instigation punishability problem provides a reasonable basis for the conclusion.The fifth part is to introduce the common law and the criminal law circles of our country to judge the content of abettor attempted instigation penalty can practice or not,is analyzed in the Anglo American law system,the reason of statute law and case law attempted instigation of punitive hold totally different attitude,finally pointed out the research focus only on subjective elements thinking and ignore the objective elements of the one-sided and form defects.The sixth part,in view of the defects of the existing doctrines,finds the root of the problem,and then provides a new way of thinking to solve the punishable problem of attempted instigation.Firstly,the attempted instigation punishability of formation of disputes in the theory of the situation,the most fundamental reason is that the system of deep-seated crime involved in the crime,the German and Japanese scholars insist to limit the perpetrator based distinction system does not solve the problem of common crime most suitable theory.Through a comparative analysis of the joint crime system of differentiated system and single system,it is advocated to return to the single principal offender system to discuss the joint crime including attempted instigation.On this basis,further clarify the unitary system,each participant in the common crime behavior is part of the other participants,means that each ofthe participants are in their own behavior to adequate crime and common crime punishment based on the final set foot in a separate crime punishment according to the constitution,i.e.come up,and that the elements,subjective elements should be in the core position,to solve the attempted instigation key is whether or not the penalty attempted instigator has subjective sin.Subsequently,it was pointed out that in the case of attempted instigation,the abettor deliberately induced the crime of others and knew that the crime had a threat of legal interest,so the abettor’s crime had the same legal interest threat.Of course,the attempted instigation and the general instigator’s subjective fault or have different places,the former is deliberately attempted based on the latter is accomplished for intentionally,but the degree of influence is attempted only sin without sin,there is no decision,it also further confirms the attempted abetting crime of subjective existence,provided the theoretical basis for the punishment of attempted instigation.Finally,combined with the reality of the accidental factors,will be divided into the attempted instigation instigated has not yet embarked on the implementation behavior,has begun to implement the behavior,but the attempt has begun to implement the behavior and the accomplishment of the three cases,the instigator of the conviction and sentencing are analyzed. |
