Research On The Basic Questions Of The Attempted Instigation

Attempted instigation is quite controversial issues of the criminal law, the domestic and international criminal law scholars haven't yet reach a consensus on the problems such as its conception, its nature or whether it's punishable. In this paper, starting from the conception of the attempted instigation, the author compares it with the related conceptions, and then clarifies its nature, puts forward some suggestions on its criminal responsibility.The thesis is divided into four parts:In part one, it talks about the conception of the attempted instigation. Although the issue has been debated for a long time, it hasn't reached a consensus. Some scholars refer the attempted instigation as an uncommitted instigation, some other think it as the circumvention instigation. The author discusses both of the two views and put forward her own point that the attempted instigation can't be equated with uncommitted instigation or circumvention instigation. Then the author describes and compares the various definitions of attempted instigation from domestic and international criminal law fields, and defines that attempted instigation should be pointed that a person who still instigates others to offend against the law,though he foresees the instigated person couldn't carry out the crime. After that, the author outlines the characteristics of attempted instigation, discusses that the the attempted instigators should have instigated the innocent people with no criminal intent to offend the law, and he should have foreseen that the instigated person couldn't carry out the crime. The author particularly stressed that if the instigator has the intention to let the instigated person to fulfill the crime, he will not be classified as a attempted instigator.In part two, the author clarifies the connection between the attempted instigation and its related conceptions. This part is also been divided into two sections. The first section defines the circumvention instigation as the behavior that one instigates someone to commit a crime, in order to frame the instigated person. Basic on the definition, the author discusses the connection of these two conceptions, the author says that there are two different conceptions with similarity; there exists a cross between their extension. Similarly, in the second section the author clarifies the definition of the entrapment, she thinks that the entrapment means that the investigators take a certain degree of temptation means to induce an object to commit the crime, and arrest the object when the crime is on the go or after the results has come out. Then the author discusses the connection between the attempted instigation and the entrapment, defines that there are two different conceptions from two different department laws.In part three, the author defines the nature of the attempted instigation. She points out that the attempted instigator can neither be an instigator, nor an attempted offender. On this basis, the author defines the nature of the attempted instigation---attempted instigation is a independent kind of behavior different from instigator. Whether such acts constitute a crime depends on its social harm and the fault of the instigator.In part four, the author discusses the question that whether the attempted instigator is a punishable crime. This part is divided into three sections. In section one , the author briefly introduces the main points on the issue from civil-law system,common-law system and our domestic criminal law research. Then the second section gives a brief assessment of the aforementioned variety of perspectives: for the civil law theory, the author believes that their attempt to discuss the attempted instigation is built on the basis of a common crime, but whether the attempted instigation itself constitutes a common crime is debatable, and she holds the opposite idea. For the common-law theory, although its theoretical system is different from our criminal law, but we can draw lessons from its research method. Our domestic scholars take the different approach to do the research, have come to a variety of different conclusions, and the author gives her opinion on these conclusions. In section three, the author gives her opinion on attempted instigator's liability. The author believes that we should discuss the instigator's liability in different cases. When there is no hazard result, we can get the conclusion that he is innocent, if there does exist a hazard result, the instigator's liability depends on his fault. There are two kinds of hazard result ,if the result belongs to the essence of the instigated crime, the attempted instigator's subjective fault should be negligence, he should bear the responsibility for negligence , if not, the instigator's subjective fault should be intention or negligence, and he should be bear the corresponding responsibility.