Research On Attempted Instigation

Attempted instigation is a very complicated problem in the theory of accomplices. There are just few scholars who are studying the attempted instigation in China. This test tries to clarify the nature and connotation of the attempted instigation by distinguishing and defining the concept of attempted instigation and the similar definitions. We get the argumentation on the essence of attempted instigation by means of the comparative study on Criminal law theory. The author analyses the structure of attempted instigation through two aspects:subjective offence and objective harm. Though there is no explicitly stipulated in the existing laws, the author confirms the attempted instigation's strafbarkeit and defines its liability from the perspective of Criminal hermeneutics.The first part introduces the historical origin and some countries'legislation situation about the attempted instigation. We could find the source and foundation of the attempted instigation by clearing up its history. We could summarize and absorb the experiences and lessons through the comparative studying on the countries' legislation about the attempted instigation.The second part is to clear and define the core concepts. After research the definition of the attempted instigation in Germany, Japan, Korea and Chinese Taiwan and Chinese Mainland, the author tends to understand the attempted instigation in the broad sense, which means that abettor does the abetting action in order to make the abetted criminal ending his or her crime attempted. At the same time the author distinguishes and defines the concepts between the "attempted instigation" and "unfulfilled instigation", as well as the concepts between the "attempted instigation" and the "agent provocateur". Finally the author will define the nature of attempted instigation through clarifying and explaining the confusable conceptions previously in this section.The third part is to talk about the essential attributes of the attempted instigation. The author analyzes the condemnatory foundation on attempted instigation in terms of the independence of accomplices and the subordination of accomplices. And we could draw a conclusion that the abettor in the attempted instigation is punishable in both aspect. After introduces the controversy between the punishable group and the unpunished group, the author further clears and definitudes the essence of the attempted instigation.The fourth part is to talk about the basic constitution of the attempted instigation. First the author analyzes the relationship between the harmful consequences and the criminal intent, and then defines the subject offence of the attempted instigation which is the actual and pressing harm for the victim, and the punishable consequences for the abetted person. And in whichever aspects, the abettor is intentional. Second, the author confirms the illegality of the attempted instigation through explaining the uncertainty of attempted results and discussing the causal complicity theory, manifest the illegality and the harmfulness of the attempted instigation.The fifth part is to discuss the form of processing and imputation on the attempted instigation in the context of Chinese criminal law. In the cases of that there are no definite regulations on the behavior of the attempted instigation in china, it is advisable to treat it as the abettor. In terms of the specific punishment, we should punish the crime according to the progression of the act and the occurrence of the criminal result.The author studies the attempted instigation in order to perfect the criminal law theory and guide the judicial practice. The study could further provide the guidelines for the judicial officer to solve problems impartially and rationally in the judicial practice. And this is also the significance of the author's topic selecting.