Constructing A New Path Of Instructors' Punishment At Crime

In abetting cases, the instigated man doesn’t implement the instigated crime, whether the instigator’s behavior establishes instigation and crime? From the facts and conclusions of the very case, this article question the theory which is used to solve the two problems mentioned above in China judicial practice. Because, this article believes that theory is the independent character theory. However, that theory cannot be tolerated by the modern theory of criminal law.In civil law countries, there are two theories about confirming on the nature of instigator, independence of instigator and subjectivity of instigator. Based on the objective of the criminal law theory, subjectivity of instigator believes that, punishing the instigator must be on condition of the instigated man committing certain acts which produce specific dangerous infringement of legal interest. Based on the theory of criminal law in China, the duality as the field of criminal law misunderstands the nature of instigator. As a result, in order to adapt to the development trend of criminal law, adopting the subjectivity of instigator is the best choice of the criminal law in our country.However, the pure subjectivity of instigator may miss some evaluations on society’s danger. There are not enough sufficiently protection on legal interests. To balance the social safe and human rights, I propose to learn Na Duche modeled from German criminal law. Independence of instigator applies to felony instigator. Subjectivity of instigator applies to the misdemeanor instigator. By the method of part punishment theory, the article 29, paragraph 2 of China Criminal Law should be rebuild as: Instigator instigates others to commit a felony, if the instigated man accepts abetting but doesn’t implement, the instigator should be punished in the name of attempted felony. This article contains four chapters.Chapter One: From the facts and conclusions of the very case, questioning the conclusion that the attempted instigation is attempt criminal.Chapter Two: This part demonstrates the premise of debating the nature of instigator, and to be clear of the controversial "Instigation" concept. I correct the misreading of the nature of instigator in the criminal law, after specifically addressing the debate of the nature of instigator in the civil law countries instigator academic. Then put forward the necessity for building an exception to the principle of the path from subjectivity of instigator, according to the position about objectivism criminal law and the consideration of protection of interests circumspect.Chapter Three: Taking Na Duche modeled for reference, independence of instigator applies to felony instigator. Subjectivity of instigator applies to the misdemeanor instigator. By the method of part punishment theory, we should construct the nature of instigator with “Subjectivity of instigator is universal and independence of instigator is exception”.Chapter Four: Based on the above positions, clearing a number of difficult questions about the instigator of clarification.