Independent Instigator Research

The matter of instigator is one issue in theory all the time. Being a sort of instigator, independent instigator has a unique connotation. There are provisions in the criminal law of both joint instigator, lying in the paragraph 1 of article 29 that one who instigates others to commit a crime shall be punished according to the role he plays in the joint crime, and independent instigator, lying in the paragraph 2 of article 29 that if the instigated person does not commit the instigated crime, the instigator may be given a lesser punishment or a mitigated punishment. For the complexity of the matter of instigator and the mode chosen by the law, there exist varieties of viewpoints that differ in notion, elements, nature, criminal pattern, penalty principles, etc. of independent instigator. Meanwhile, there is many a question on pleading guilty and punishment in practice. Based on the precedent research, the author try to discuss the matter of independent instigator, and meet the need of completing legislation, judicature and theory.According to the instigated one commits the instigated crime or not, instigator can be classified as joint instigator and independent instigator. The instigated one of the joint instigator finally commits the instigated crime, while the instigated one of the independent instigator does not. Therefore, independent instigator refers to the instigator that intentionally instigates the instigated one whom finally does not commit the instigated crime. Based on this concept, the author then argues the elements of independent instigator by two aspects, including the instigator instigating the crime and the instigated one not committing the instigated crime.It is a premise of recognizing the nature of independent instigator that hold the nature of instigator. There are three ideas of the nature of instigator, subordinated, independent and dual, in the theory. After a careful analysis and comparison, the author seconds to the abstract dual nature idea, and from this believes that independent instigator as a whole is independent, while is both independent and subordinated as to paticular conviction and penalty. Independent instigator integrates the subordinated nature and the independent nature. The criminal pattern of independent instigator plays a great part in dealing with the theory of independent instigator. Different opinions on that make the arguments of the theory of independent instigator. The viewpoints of crime pattern are mostly as follows, preparation, attempt and accomplishment. Based on the understanding of independent instigator, the author consider independent instigator in accordance with one who attempt to commit a crime. The offender has taken action to commit a crime, and the crime fail to accomplish, and the failure result from causes except the offender's will. Thus, independent instigator should be considered as one who attempt to commit a crime.The punishment to independent instigator touches on investigating criminal liability, exploring whether introducing criminal method or not, and how to apply in practice, etc. The author begins with the traditional theory of liability, suggests that the foundation of penalizing independent instigator is both the harmfulness to society of the instigating action and the personal dangerous of the instigator. The principles punishing independent instigator can be divided into general ones and particular ones. The former considers the facts, nature and details of a crime, while the latter involves severe punishment to instigator who instigates one under 18-year-old. No doubt, for those who cannot be penalized, should be in the exception of penalty.In general, the provisions of independent instigator in the criminal law fit the conditions and practice of the nation, and offer a wide field of theory study. In the limitation of independent instigator, however, it still has some questions. From this, based on the above study of attempting to commit a crime, the author constructs a better system of independent instigator.