On Analysis Of Instigater Of Properties And Publishment Based On The Theory Of Chinese Criminal Law

In the theory of common crime, instigater of properties and publishment are two more complex and controversial issues, the correct interpretation of these two issues are significant to understand the related to common crime. This article based on Chinese Criminal Law with regard to the provisions of instigater, closely linked to provisions of criminal law, analyze the theories of instigater of properties and publishment, reflect on their strongpoint and weaknesses, analyze whether it applies to the theory of China's Criminal Law abettor, and, on this basis, I put forward myself views. The thesis is divided into two parts, namely, introduction and text, and also the text explores three related issues.The introduction section describes the current theory of criminal law in instigater of properties and publishment, including the research outline, the purpose of choosing this topics and research methods.First, the text detailedly analyses the provisions of the criminal law article 29, paragraph 2. Theoretically, "abetting people who have been abetting the crime is not guilty," the meaning and criminal pattens have a big difference, the author thought, "the person was instigated by abetting the crime is not guilty," including the following four cases: (1) When abettor carried out abetting acts, the abetted people simply did not accpet and abetting attitude was refused. (2) Abetting acts are accepted at the time, but instigated people does not want to carry out criminal acts, that is, first people accept abetting but then give up again. (3)The person's mens rea is not a result of abetting acts, that is, instigated persons have been mens rea before the implementation of abetting acts.(4)The instigated person's criminal beharior is not same as the instigated act, accoding to the theory of China's criminal law,the establishment of conditions will attempt to shape the patterns of crime which is defined as an attempted. On this basis, we can give a clear definition to China's Criminal Law of abettor: Abettor is deliberately abetting the perpetrators to crime, and gives the conditions for the establishment of an instigator: subjective aspects of abetting a crime must be deliberate, objective elements only requires abetting criminal acts.Text and then explores the nature of instigator. The nature of instigator has been the focus of theory of criminal law, representative points are: property, independence, duality and reject. The author believes that these types of theories break away the provisions of China's Criminal Law of the instigaor, can not reasonably explain the nature of the instigator. In the lack of serious reflection that the above mentioned conditions, the author gives the following reasons: Since the provides of China's Criminal Law have special about abettor, lead to China's Criminal Law abettor neither subordinate not independence, but even less to speak of duality. And also have the following reasons: traditionally, abettor exist in the joint criminal. And to explore its nature should be limited within the framework of a common crime. But the existence scope of China's Criminal Law abettor have brought hardship to determine the nature of instigator. And the classfication of accomplices have brought defect to determine the nature of instigator. And the instigator of a sole specific form can not determine the nature of China's instigator.In the finally the text concludes with a discussion of the abettor's publishment basis. Theoretically, about the basis of the instigatoe penalty, there are three different theories, they are the responsibility of an accomplice theory, a narrow sense of accomplice theory and cause theory. But the cause theory includes pure cause theory, mixed cause theory and amendment cause theory. The text detailedly introduces the elements of different theories and describes the limitation of different theories, combined with the special provisions of China instigator and pointed ou that: the responsibility of an accomplice theory, a narrow sense of accomplice theory, mixed cause theory and amendment cause theory,they are not well explained instigator penalties basis problem, but pure cause theory for its unique advantage clarify this problem. Because the pure cause theory is suitable to the provisions of China Criminal Law, just can reasonably explain"no an accomplice of the perpetrator"and"no perpetrator's accomplice"; and also this theory better implements of the principle of guilt conceited and better reflects the combination theory.