Research On The Attempted Instigation

The nature of the attempt to instigate is complex.Even the most basic conceptual issues have many different views.The theoretical and practical circles have been discussing the relevant issues very intensely.The ambiguity of the concept also makes it difficult to study the issue of attempted punishment.It is said that article 29,paragraph 2 of the Criminal Code is a punishment for attempted instigation.In fact,this paragraph only applies to some attempts to abet.Attempting to instigate is one of the most complicated issues in the theory of joint crimes,and studying it is of great significance to promote the improvement of related legislation.The full text is divided into four parts.The first part is the basic theory of attempted teaching.Attempt to instigate means that the instigator has failed to achieve the purpose of the instigation or the act of instigation has not been completed.It can be divided into four types: unsuccessful teaching,failed teaching,invalid teaching,and narrow teaching attempt.Attempt to instigate is not to frame up instigation,and there are many differences in subjective and objective aspects from attempted instigation.As for the nature of abettors,there are currently three different theories of accomplice subordination,independence or duality of accomplices.Although the duality theory is more conducive to answering the issue of attempted instigation,and it also occupies an important part in theoretical research and judicial practice,it is necessary to adhere to the theory of accomplice in the nature of instigator.In fact,it is not contradictory to attempted punishment.The second part is the punishment of attempting to instigate.The traditional view is that the nature of instigator directly determines the punishment of attempted instigation.Although there is a natural connection between the two,the type of attempted instigation is not unique,and not all cases constitute a joint crime.This article insists on the view that punishment is attempted but not punished.However,there are two cases where punishment that is not solicited and failure are not harmful.The punishment basis for attempted instigation is: the danger of infringing legal interests,the necessity of crime prevention,and special punishable preparatory acts.Because the instigation of the instigator raises the danger of conspiracy,it is a special preparatory act that is out of control and more dangerous.For the purpose of preventing crime,it is necessary to move the protection line of the criminal law forward.The third part is the understanding and problems of Article 29(2)of the Criminal Law."The instigated person did not commit the crime of instigated" means that the instigated person did not commit the crime as the instigator intended.That is to say,the scope of the application of paragraph 2 of Article 29 includes the following three situations: 1.The instigator accepts the instigation but does not commit any criminal behavior;2.The instigator accepts the instigation and begins to perform the preliminary act,but does not proceed;the three instigator receives the instigation,But it commits crimes other than the crime of incitement.In addition,this paragraph has legislative and judicial problems.Legislative problems include unclear nature,unclear scope,and chaotic penalties.Judicial issues include imbalances in penalties,chaotic application of laws,and subjective convictions.The fourth part is an overview of attempted foreign legislation and the improvement of related legislation in China.Introduce the penalties for attempted instigation in civil law countries such as Germany,Japan,and British and American law countries such as Britain and the United States.There is a big difference between the theories of instigators in the common law system and China,and the relevant legislation is not suitable for China.The relevant provisions of the civil law system have great enlightenment on the improvement of China’s attempted instigation.We can learn from the German practice and limit the punishment for attempted insult to felony.In view of the improvement of the legislation of China’s attempt to abet,there are three common viewpoints: independent conviction,direct deletion,and partial modification.Limit the scope of punishment for attempted incitement.Only instigate the instigator if the offence is a felony.The standard for the felony is a crime with a minimum legal sentence of three years or more.