The Discussion About Some Questions Of Instigator

The instigator is the important issue of the theoretical study of crime. Due to the difference in the tradition of legal cultural ,the spirit of the law and the legal ideas, there is also the difference understanding about instigator of the national. The focus of the argument is the nature of the instigator. Different schools of thought, different legal systems have a different point of view on it. The argument in the theory and the blurring in the legislative provisions makes the judicial practice puzzled and unable to solve difficult problems .It brings great inconvenience to the judicial practice. At present, a great number of scholars also join in the research unremittingly. The provisions of the instigator in the current China's Criminal Code brings us many discussions. It shows that the instigator of the research has the great theoretical and practical significance.In addition to this introduction and postscript, is divided into four parts:Part I: the concept of instigator. The part on the following issues: First, introduced the instigator's concept in the two legal systems and Chinese Criminal study. Germany's Criminal Code and Japan's Criminal Code as the representative of the legislative are approach to the understanding about the instigator of this stage in our country, but it did not distinguish between non-solicitation to commit an accomplice and an accomplice instigator, there is still a confusion in many puzzled questions solely on this Kind of theory ;There are two cases in Common law ,and it can better solve the instigator of the theory in some confusion, so we should learn from it. I believe that we should learn from it that the instigator is divided into two cases, just a general concept of instigator as a premise, then divided into two instigator to define more appropriate.Part II: The dispute of the instigator's nature. The problem of the instigator's nature is the a priority issue of the theoretical research of the instigator, but also the core of solving other problems. The author equally introduce the various theories at home and abroad of the instigator's nature. The accomplices from the property and the independence of an accomplice is the two different theory in foreign theory. The accomplices from the property is the point of view of Hunker, based on behaviourism and objectivism, and they believe that that the found of the instigator should be lie on the setting about being put into effect of the principal offense. The independence of an accomplice is mainly from New school, based on subjectivism, and they believe that abetting in itself possesses the serious social harm, so the found of instigator is independence. The two doctrines in the era of their background have a reasonable core and have a positive role . But in the development of today, it is not difficult to see that these two theories every holds one side, biased. Chinese scholars introduce the independence of instigator,instigator from the properties, instigator dual nature of that nature and the instigator double negative views etc,learning from the theory about the nature of the instigator in foreign. I believe that because that the concept of the instigator does not understand clearly : there are two different kinds of instigator, and the two mix up, so the nature of the instigator will exist many inadequacies.The question of the nature of the instigator is the relation of the instigator and principal offence, and in the instigators were not implemented by abetting the crime situation, because no principal offence, it is not necessary to discuss the nature of the instigator.But in the the implementation of the instigators were instigated by the circumstances of the crime, because there is a principal offence, to discuss instigator of the nature of the premise. As abetting itself is unique, and it only bands closely with the implemention, the instigator can achieve it's crime purpose, and in such circumstances, the principal offence firms or produces his criminal intent because of the abetting of the instigator.. Therefore on the issue of the establishment of the instigator, they do not exist who is affiliated with whom ,the relationship is interdependent, combined with closely. On the question of the instigator's conviction is subordinate to the principal offence. On the question of the instigator's sentencing, one hand we should consider abetting in the crime committed themselves in the role, on the other hand we should compare with the principal offence .Just so we can measure the role of the instigator played in the crime. so on the question of the sentence is a dual nature.Part III: instigator of the establishment of the Elements. First the author introduced the views about the elements of the establishment of the instigator in the home and abord.Both of which hold one side. I think it is right in front of the premise, we should distinguish between the elements of the establishment of the instigation of abetting the crime and the elements of the establishment of the accomplice.It is more appropriate that prescribe the elements of the establishment of the instigator from the main ,subjective and objective of these three aspects.Part IV: the establishment of abetting the crime. The author analyse the feasibility of the setting up of the crime of abetting .I think because of abetting the act itself having serious social harm,is in line with China's Criminal Law and in line with the provisions on the nature of crime in our theory. Also abetting is prescribed in China's Criminal Law .Evidently, abetting is the acts of the ruling class believe that it should be subject to penalties, and possesses legal characteristics of the crime. In addition to establish the crime of abetting is in line with the requirements of unity of the objective and subjective, also in line with our principle of statutory crimes, but also because single instigator is without principal offence, so putting in the section of common crime is clearly inappropriate and undermine the unified structure of the Criminal Code. Therefore, I believe that it should be a separate crime, setting up the abetting crime. There is also a point, I believe that incitement to crime and abetting crime are not fundamentally different, and the incitement to crime can be absorbed by abetting crime. On this basis, the author puts in own criminal law provisions designed.