Study On Circumvention Instigation And Entrapment

Circumvention Instigation & Entrapment are the two conceptions with close relationships, the first one of which used in conventional law and the second one in Common Law. Because Chinese criminal law theory hasn't made enough focus on them and the detailed law regulating them was absent, a lot of controversies were produced in practice. Focusing on Circumvention instigation & Entrapment, this paper studies the basic concepts on this legal term, illustrated and analyzed the relevant problems in reality. At last, an opinion of perfecting the legal system nowadays was suggested based on the law of today. The paper tries to express the author's opinion by way of illustrating from theory to practice, from summary and deduction to bold innovation.The paper is divided into 5 chapters, with the first two chapters focus on Circumvention instigation, the following two chapters on Entrapment, and the fifth chapter is an ending.The chapter 1 is about the summary of Circumvention Instigation, the main content of which focus on the concept and character of Circumvention instigation. When studying the concept of Circumvention instigation, the author compared the outline of opinions about it in theoretical world and listing 6 problems that should be solved before the concept is got. Then, according to the theory of Criminal Law of China, the author elucidates the concept of Circumvention Instigation. Geometric graph is used for comparing the Circumvention Instigation and Uncommitted Instigation, which becomes a big try in this paper and has an intuitional effect in comparing these two concepts.The chapter 2 is about whether Circumvention Instigation is worth punishing. This part lists and analyzes the Circumvention Instigation from the angle of the Continental Law, Common Law, and the theory of criminal law, which makes readers have a substantial comprehension of punish about Circumvention Instigation. Then the author analyzes the punishment under the context of Chinese Criminal Law, and after considering the flaw of Chinese Criminal Law, the corresponding e advice was given. At last, the paper simply analyzes how to dispose when the consequence happens. How to use the Continental Law's theory of criminal common, the behavioral common and accomplice independence and dependency to analyze the punishment of Circumvention Instigation is the difficulty and emphasis of this paper.The chapter 3 focuses on the basic knowledge of Entrapment, a conception that is closely linked with Circumvention Instigation. This part chiefly studies its concept, classification, legitimacy and the difference between it and Circumvention Instigation. In this part, the author analyzes the"subjectivism"and"objectivism", which are the traditional criterions of discriminating"the chance supplying Entrapment"and"intention-inducing Entrapment", as well as the"compound criterion", which is the opinion of some Chinese scholar. At last, the author holds to the criterion of"mainly objectivism, auxiliary subjectivism", using the philosophy method of"real and ought to"analyzing method.The chapter 4 is another important part of this paper, which is about the system design of Entrapment. This part designs the problem from six angles, which are the body practicing them, the case the Entrapment can use, the object, the procedure, the degree, and the consequence of unlawful Entrapment. Studying the motive of legitimacy, the author thinks this method can be used in the cases that have victims, which is a vivid character of this part. When referring to the restriction of procedure, the author introduces the pretrial court system of foreign countries, which can have some rights in Entrapment. This can make the Public Security Organs, the court and the Prosecutor cooperate and restrict with each other. When referring to the consequence of, substantive punishment and procedural punishment are used to prevent and reduce the unlawful Entrapment.The chapter 5 is the last part of this paper, which is the summary of the whole paper, also an appeal to the juridical officer.This paper focuses on the combination of substantive law and procedural law, Chinese criminal law and foreign criminal law, and the comparison of legitimacy and theory, with the purpose of further realizing the essence of Circumvention Instigation & Entrapment and giving some advice of solving the problems in practice in near future.