Study On Independent Instigator

Joint crime is an important question in criminal law, and the question of instigator is an important and thorny question. In the Criminal Law of China, article 29, section 2 states:"provided the person is not guilty of the instigated crime, the instigator may be punished less severely or with a lighter punishment."It implies that the instigation must be punished, in above situation. Because of the ambiguity and confusion of the prescription of the current Criminal Law and the complexity of theory, scholars can not study the matter at the same position. Therefore, the traditional instigation theory should be perfected by dividing the concept of instigator into independent instigator and joint instigator and reforming the constitution requisites to crime of independent instigator.This thesis consists of preface, main body and conclusion. Preface gives a reason why the author studies the question. The reason is that the article 29, section 2 states is useless in practice. And meanwhile exposes the logical trail of the author's unfolding this thesis. The main body is made up of four sections. The first section reviews three views on the nature of independent instigator. The first view holds that the nature of independent instigator is subordination. Because the person is not guilty of the instigated crime, the abettor is innocent. The second view holds that the nature of independent instigator is independency, so all the abettors are condemnable. Therefore, the independent instigator is the guilty. The third view holds that the nature of instigator is binary. It is thus able to endorse that the nature of abettor is not only subordination, but also independency. In above situation, the nature of abettor is relative independency. Next the author reviews current law because of two mistakes. The one is the confused logic, and the other one is the ambiguity and confusion of the prescription of the current criminal law. The second section is concerned with the concept and the characteristics of the independent instigator and the condition of the independent instigator. The author believes that proved the person is not guilty of the instigate crime, the instigation behaviors can constitute a crime independently. The independent instigator does not belong to joint crime. Then the author answers this question: is the condition of independent instigator an attempted crime, or a consummated crime? Lest there be any doubt, the author should state at the outset that she associate her with the latter view. Even though independent instigator is namely what is regarded as"attempted instigation"accepted by Chinese-Foreign traditional theory of criminal law. The author did not share that theory and she still do not. She believes that it is a consummated crime. This essay takes the renaming of attempted instigation as independent instigator and the definition between independent instigator and joint instigator as the beginning. The aim of writing the third section is to make clear where we to draw the line of abettor's responsibility ought and whom it should be drawn by? In my view, criminal punishment ought to be based upon blameworthiness only, and not imposed upon those who cannot be blamed. As we all know the behavior of independent abettor could not cause any objective damage, and the foundation of criminal theory is objectivism. So the act is considered as a crime only when it comes to the point of danger. The point should be noticed is not all the instigative acts can be decided as instigation crime in practice. The fourth section, immediately following the third section, advice modifies the criminal law, it is the author views that, the above section might be modified as:"provided the person is not guilty of the instigated crime, in serious cases, the instigator must be punished. The minimal punishment of the above offence is less than three years imprisonment, detention or control. The instigator who abets infants must be punished severely."Conclusion reaffirms the author's view and the question that will be study in the future.