Study On Independent Instigator

The system of instigator theory is comparatively complicated, in which joint instigator and independent instigator are of grate differences in nature. However, the Criminal Law of China does not distinguish the differences between the joint instigator and the independent instigator. On the contrary, both the joint instigator and the independent instigator are generally included in the Criminal Law "joint crime" section. This legislation has led to a range of disputes in theory horizon. For example, independent instigator's nature, establishment of elements, criminal pattern, punishment evidence, punishment principles, etc. What's more, the legislation has caused much confusion in juridical practice. Based on the precedent research, this paper tries to use the method of comparative study and combing theory with practice, and attempts to dialectical analysis a range of issues of independent instigator, for example, the nature, the establishment of elements, the criminal pattern, criminal responsibility, and so on. This thesis tries to preliminary construct the theoretical system of independent instigator, to meet the need of perfecting the theory of independent instigator and judicial practice.One of the innovative points of this thesis is that, this paper is based on the standpoint of objectivism criminal law; adheres to theory of duality of accomplices and theory of part crime common to study the independent instigator. Independent instigator refers to the instigator that intentionally instigates the instigated one whom finally does not commit the instigated crime. Independent instigator is the dialectical unity product of subordinate nature and independent nature of instigator. Specifically, in the grander, independent instigator is independent, while in the particular conviction and sentencing, independent instigator is both independent and a certain subordinate. The subordinate nature is the dialectical unification relations with the independent nature, both of which throughout the conviction and sentencing of independent instigator.The theories concerning the independent instigator's establishment of elements are at issue. Therefore, this paper focuses on the subjective and objective aspects of the independent instigator's establishment of elements, and gives comprehensive interpretation of the content, manner, intensity, objects, etc. What's more, it explains the meaning of "the instigated person has not committed the instigated crime". In the author's opinion, the subjective element of independent instigator may be only direct-intention.The criminal pattern of independent instigator should be recognized as unaccomplished formations. The reason is that in the independent instigator's situation, the instigated person does not committed the instigated crime, as a result, the instigator's expecting results does not occur. Moreover, all of this is due to the causes except the offender's will, and it is completely consistent with the features of attempted crime.In this paper, it is analyzed in detail that the basis of penalizing independent instigator. In the author's opinion, the study of the basis of penalizing independent instigator should adhere to the principles of unification of subjective and objective, and tend to objectivist position. In short, the legal basis for penalizing independent instigator is that, the instigator subjectively wants to be accepted and hopes the instigated person to commit the instigated crime against society ultimately; objectively, the instigator implements instigate behavior, which is both the harmfulness to society of the instigating action and the personal dangerous of the instigator. The criminal responsibility of the independent instigator shall consider the facts, nature, circumstances, harm to the society, etc. It is important to note the special principle punishing independent instigator, because the instigated person dose not commit the instigated crime, independent instigator is less harmful than joint instigator, the former behavior may be given a lighter or mitigated punishment than the instigated one whom finally commits the instigated crime; while the instigator who instigates the one under' 18-year-old shall be severely punished. In addition, the thesis discusses the exceptions of independent instigator penalty-- the instigation which can not be penalized, which is the second innovation of this paper.In view of the criticism of the existing Criminal Law Article 29, paragraph 2, from the current theorists of criminal law, the author put forward unique views, which is another innovation of this thesis. The author argues that the problems between the criminal law and judicial practice can be solved by means of scientifically explain the current regulations, and there is no need to amend the legislation on independent instigator.