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Research On The Basic Problem Of Incitement

Posted on:2018-03-10Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y L HuFull Text:PDF
GTID:1316330536972412Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
As a special form of speech crime,incitement is used to regulate for the abuse of constitutional rights by the legislator.But it has not been for the academic "favor".Perhaps scholars are more interested in discussing the game between the criminal power behind the establishment of an incitement and the idea of constitutional freedom of expression.This is the case from the point of view of the existing research.Since the incitement and the instigator are similar in the structure of the crime,it seems that the theoretical doctrines of the instigator can well enrich the connotations of the incitement.And it would seem unnecessary to have the incitement as a research object alone.In this regard,we do not agree.This is an enduring topic: how to limit the penalty power to the basic rights of citizens in the context of the social transition period and the expansion of the criminal law network.Nowadays,with the development of network technology,seditious remarks are endless,and mass incidents occur frequently.It is also an important practical significance to deeply study incitement.Based on this thinking,this article will be incitement as a research object,intended to incite the basic concept of the incitement,structural characteristics,forms of crime and punishment based on the study to enrich the connotation of incitement,and by discussing the relationship between incitement and freedom of expression,to clarify the purpose and limitations of incitement to commit,and to coordinate the subtle relationship between speech crime and freedom of expression,and to reshape the incitement to commit their independent doctrinal position.The first chapter discusses the concept,characteristics and legal nature of the incitement of the crime,and clarifies the theoretical conservation that should be possessed by the incitement of the object of this study.In the discussion of the concept of incitement,there is a divergence between the perspective of the offender and the angle from the point of view of the crime.This article,based on the needs of the study,defines the incitement as an act of enlightening speech by intent to make an unspecified or majority Or to strengthen the criminal determination of the criminal form.Among them,the issue of seditious speech and causing others to commit crimes is its most important behavioral characteristics.Then this article makes a division of the type of incitement to clarify the different characteristics and the meaning of all kinds of incitement.Which will then incite the idea of a few similar to those of the prisoners,in particular with the instigator,to further clarify the incitement to commit their unique doctrines.Finally,this article from the perspective of the law enforcement of the instigation of the history and reality of the investigation.Which explores the historical origins of the incitement to the Anglo-American law system,the civil law system and the criminal law system of our country,explores the process and the reason of its evolution,and finally analyzes the influence of the incitement of the present law.The actual investigation of the incitement is to sort out the legislation of the criminal law on the incitement of the criminal law in our country and finally find out the inadequacies of the incitement of our legislation through the comparative study.The second chapter mainly discusses the relationship between the criminal law punishing incitement to crime and the constitutional guarantee of freedom of speech.This chapter first affirms the important value of freedom of speech,which is of great significance to the exploration of knowledge,the construction of national democratic politics and the realization of individual selfish value.It is a symbol of the degree of national civilization and the degree of rule of law.Uncontrolled freedom,abuse of the right to freedom of speech will also bring the risk of legal infringement,so its scope of legitimacy only in the national security and public interest needs.Then this article discusses the basis for the regulation of speech to be the basis of the criminal law,this paper argues that speech is a special act,whether it can be considered in the case of specific considerations,but seditious speech is the abuse of constitutional rights,and some content Clearly point to the criminal of the inflammatory remarks has been to the criminal law required by the degree of social harm,so the criminal law on such inflammatory punishment is justified,and will not harm the freedom of speech of citizens.Finally,this paper points out that the power to punish the crime is also at risk of being abused.The punishment of the criminal law for the seditious speech is not without "side effect".Therefore,under the guidance of the concept of protecting the rights of citizensí speech,combining with the principle of interest measurement,proportion principle and classification management Principle,in the narrow sense to strictly determine the elements of incitement to prevent the penalty of the basic rights of the excessive erosion of citizens.The third chapter is about the nature of incitement to the study,the academic community has always been that the idea of incitement and instigator is essentially the same,is the special form of the instigator,and thus use the instigator from the property,independence or dual theory can be A good explanation of the nature of incitement to commit.But unfortunately the theory of the nature of the instigator,the existence of their own can not overcome the drawbacks.The notion of attribute is not only consistent with the partial provisions of the statute,it is also contradictory in interpreting the indirect offender and conspiracy to commit a common offense.Moreover,it is believed that abetting is subordinate to the practice of behavior,The theory of the theory of independence will be based on the establishment of the instigator and the punishment based on the mix,making the constituent elements in the judgment of the confusion,by the This leads to the absurd conclusion that the abetting behavior is also the act of abetting the crime,and finally shook the theory of constituent elements as the basis of the crime.The duality theory seems to combine the advantages of independence and attribute theory,but in reality it is the chaos of the connotation of independence and subordinate theory,which also causes the theory connotation is messy,the position is unclear,and the practical operation is chaotic And so on,so it is imperative to seek new theoretical support.In this paper,the nature of incitement is the instigator to achieve the incitement of the crime to achieve the goal of the selection of candidates,manufacturing conditions of the preparatory behavior,criminal law will be some major legal infringement of criminal acts of criminal acts as a crime,Legal benefits to advance and full protection,is the implementation of the preparatory work of the scope.Chapter 4 deals with the discussion of the elements of incitement.Although there are many arguments about the elements contained in the elements of incitement,it can be summarized as both objective and subjective.Where the elements of the act of incitement require that there is an approximation between the incitement and the incitement,the recommendation is excluded from the elements of the incitement.For the question of whether incitement can be implemented in an untenable manner,there is a controversy in the theory that there is a certainty and a negation.This article argues that incitement is committed by incitement to cause others to commit a crime by incitement,The existence of the media,with a certain as a property,not as its essence is the lack of "creativity" of the media,this time the instigatorís intention is unable to reach the instigated,and thus do not speak of the instigation of the criminals.And the statute does not give the perpetrator the obligation to prevent the instigator of the instigator of others,so incitement,such as instigation,as a criminal intention of the media,can only be implemented as a way,there is no incitement to act.Moreover,the establishment of an incitement also requires that the object of incitement must be a non-specific majority,and that incitement against a minority or a particular group can not produce an indefinite threat to legal interest.In addition,the elements of incitement are also subject to procedural requirements,requiring incitement to be directly and openly.The so-called directness is to require incitement to act directly on the instigated person,and the content of incitement directly points to the incitement of the crime,so the third person through the incitement,as well as mildly,implicit incitement is not constitute incitement to incite the incitement Behavior;and openness requires that the incitement of seditious persons should be carried out in public and public at the time and can be known to the unspecified public,so that incitement in a private place or in secret is not a requirement for the establishment of an incitement Incitement.Second,there is a considerable causal relationship between the incitement and the result of the incitement of the crime,which is the act of the agitated person with free will,so that there is only a conditional relationship between the two The point has a significant impact on the discussion of incitement to punish.In terms of the subjective elements of incitement,there is a need for factors of cognition and will,and in particular,the agitator must recognize that his incitement will have the effect of "having the will" of others,and that it is still hopeful or laissez-faire The consequences of the occurrence.It is argued that the subjective state of mind of incitement can be constituted in an indirect and deliberate manner.The author argues that in the field of publishing,distribution,printing and network service provision,the perpetrators of the review obligation are based on the pursuit of economic interests.There is the possibility of letting others incite speech,so that incitement can be made by indirect intentional mentality in exceptional circumstances.The question of the subjective controversy is whether the establishment of incitement requires a specific purpose,and this article argues that although the provisions of the criminal law on the incitement to commit a criminal offense do not explicitly require a specific purpose,but for the maximum The purpose of protecting the freedom of speech and the restriction of incitement to the threshold of incitement,the establishment of incitement should have a corresponding purpose,which can be excluded from the composition of seditious acts that are not harmful to national security or public safety.Chapter 5 deals mainly with the special forms of incitement,including the form of accomplice,unfinished form and the form of crime.The position of the incitement to the common crime can be theoretically defined on the basis of the subjective principle of the offender,the principle of objective offender,and the synthesis,but based on the special status of the incitement in the incitement,no theory can be explained the situation of all incitement,so this article should be based on the specific circumstances,combined with our criminal law for the common crime of the classification of the role of the law to determine the incitement in the common crime in the status.The unfinished form of incitement has mainly focused on the determination and punishment of the preparation,attempted and suspended forms of incitement.Because the theory is controversial about the nature of incitement,the judgment of the initiating judgment is that the nature of the act of incitement is the prerequisite for the act of incitement,and in principle it should not be punished,and the discussion of incitement Pointless.However,the criminal law is based on the criminal policy for the protection of major legal interests,and some of the incitement from the preparatory behavior to act as a punishment,at this time to commit the act is to proceed with the conduct of the act,but also to commit incitement.In particular,when an instigator begins to incite an act of infringing upon a significant interest in a law protected by a criminal law by means of words or physical action,it is the act of incitement.And whether the incitement of the judgment criteria is irrelevant to whether the instigated person has made a criminal decision,and whether or not to proceed with the incitement to commit incitement,as long as the incitement is completed and sufficient to cause the guilty of others.The last form of incitement to commit crimes is mainly to solve the problem of how to punish the instigator in the process of incitement and to commit other crimes.Chapter 6 deals with the discussion of the application of the offense of incitement.This part first combs the research in the German criminal law on the basis of incitement to punish criminals.Although the theory of incitement to sin,the normative effect,the theory of the maintenance of the theory of indemnity and the independence of the act of incitement are provided for the exploration of the incitement of punishment.But it is not necessary to meet the need of incitement to the instigation of the nature of the incitement,but on the basis of the nature of the incitement of the preparatory nature of the incitement,It is imperative to reconstruct the theoretical system based on the punishment of incitement.This article argues that the punishment of incitement is based on the role of the seditious act in the seditious crime of the whole,and the nature of the act of incitement,and thus the focus of the search for incitement to commit punishment is based on incitement rather than being The execution of the agitator.In the case of incitement to the incitement,the incitement is essentially a crime prepared by the incitement of the crime,and the danger of the result of the composition is directly caused by the act of the agitated person.Judging from the overall crime process,the result of the crime is the result of the co-operation of incitement and sedition.Based on the organic connection and interaction between the act of incitement and sedition,the complicity of the agitator and the instigated person can be determined.This joint crime as a whole raises the damage to the order confirmed by the law,And together triggered a violation of the legal interests,which will constitute the basis of the punishment of this crime.As an integral part of this crime as a whole,incitement and therefore need to be responsible for the common cause of harm,which is the cause of the instigation of the perpetrators after the instigators have committed the act.In the case where the incitement did not commit incitement,the incitement did not directly implement the lawful infringement that conformed to the constituent elements,but "created" the potential perpetrator of the instigated,and thus opened An independent legal interest risk that is not subject to the instigatorís control,which is not the same as the risk of the act of constituting the connotations of the elements,but for the protection of the law,it is an uncontrollable,Can not be expected by the risk of the final infringement of the occurrence or not depends entirely on the agony of the will of the accidental factors,so incitement and committing the offense compared to the threat of legal infringement is only quantitative and qualitative,are worth the penalty The act of punishment.The structure of incitement is to create an independent criminal causal process that is ultimately free from the instincts of the instigators themselves by breaking down the motions of others by their own words and deeds,breaking the abuses of the law to prohibit the violation of the law Order,aroused the threat of infringement of legal interests.Thus,the assertion of this article proves that the independence and assertion insists on starting from the nature of the incitement itself,rather than borrowing the punishability of the agitated person to find the basis for the punishment of the incitement.This chapter concludes with a description of the incitement of incitement against incitement,incitement to incite crime,incitement to excess and incapacity,to explain the application of the aggression to the instigator.
Keywords/Search Tags:Incitement, Right of Speech, Legislative Investigation, Conception Research, Explore Nature, Constitution of a Crime, Morphological Research, Justification for Punishment
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