Instigator Of The Attempted Research

Instigator is one form of crime stipulated by criminal law of PRC. Comparing with the other forms of crime, it has its own specialty and complexity in the theory of joint crime. The specialty of instigator is that not only he produces criminal intention, but also he produces criminal. That is, he takes advantage of others to achieve its own purpose of crime. The complexity of instigator is that it has varies of types which different with each other. Due to those characteristics, the instigator becomes one of the most disputed theories in joint crime, even be called "the death area". The issue of attempted crime of instigator which refers to the essence of joint crime and the theory of attempted crime is full of disputation from the constitution to the punishment, thus it becomes the most disputed among those questions. The disputation in theory filed perplexes the judicial field, so it is necessary to make it clear to help solve this issue.This dissertation is divided into four parts.Part one: the foundation of attempted crime of instigator. By analyzing the different kinds of understanding about the very theory, the author points out that the main problem is that there is no unification opinion about the position of instigator in joint crime theory, and the key point is that there still has opposite opinion about the relationship between instigator and perpetrator. Comparing with different kinds of theories, the author agrees with the theory of subordination of accomplices.Part two: the constitution of attempted crime of instigator. In the prerequisite of the theory of subordination of accomplices, the author analyzes the constitution of attempted crime of instigator in four aspects: first, the instigator has already instigated the instigated completely, so his unfinished behavior will lack of necessity to be punished; second, the instigated has accepted instigation to embark on instigated crime. And the standard of judging the instigator's commencement on crime should be based on the instigated embarks on crime; third, the instigator's crime is not accomplished; fourth, the reason caused the crime unaccomplished is out of the instigator's will. By analyzing the discontinuation of joint crime, the author proposes that the crime is accomplished or not should be judged by whether it goes against instigator's will.Part three: the scope of attempted crime of instigator. Among the disputation of attempted crime of instigator, its scope is discussed hotly and has maximum opinions, so it is the keystone of this dissertation in this meaning. This part including four parts: first, it combs the opinions about the scope of attempted crime of instigator, and finds out that the mainly divarication existing in the understanding about the situations stipulated in the article 29, item 2 in criminal law of PRC; second, it gives lots of inks to analyze the article 29, item 2. Combining with the theory of constitution of crime, Nullum Crimen nulla poena Sine lege, the modestly restraining spirit of criminal law, the author thinks that the situations included in this item should not be regarded as crime; third, the author proposes that the scope of attempted crime of instigator which including three cases mainly exists in the process after the instigated embarks on crime but before accomplishing it. The author also chiefly discusses the issue of attempted instigate, and proposes that it also has necessity to apply punishment according to the disposal of attempted crime of instigator.Part four: the aftermath of attempted crime of instigator in criminal law. This part mainly discusses in two aspects: one is refers to the conviction of attempted crime of instigator which solves the problem of how to determine the character of instigate; the other one discusses the punishment of attempted crime of instigator. Basing on the analysis and conclusion of the legislation of other countries and area, the author analyzes the limitation in our connotative legislation, and gives some advices of improvement.