Study On The Attempted Instigation

The common crime is called "the chapter of despair" in the criminal law. As one type of co-perpetrator, compared with the other types of accomplices, abettor has its apparent particularity and complexity. In the theory of abetment, attempted instigation is undoubtedly the most controversial issue to the scholars. The theoretical inconsistencies will bring confusion to the judicial practice, therefore, studying attempted instigation, whether to criminal law theoretical circles or to judicial practice, both have a great significance.The article first writes the nature of the abettor crime. The definition of the nature of the abettor has a fundamental significance for the related problems of attempted instigation, so must first clearly defined. Firstly, this section briefly set forth the three main doctrines-the theory of complicity subordination, the theory of complicity independency and the theory of complicity duality. Then, it makes a brief analysis and evaluation on three of them. Finally, the article pointed out that the position of it is strictly implement to the theory of complicity subordination, but there are some contents shall be maintained. The article makes it as a fulcrum to carry out the discussion. The following describes the constitution of attempted instigation and the scope of attempted instigation. This section is adhere to the general principles of the theory of the attempted crime, combining the characteristics of instigation, pointing out the attempted instigation must satisfy three elements:the instigated must has accepted the instigation and has embarked on the instigated crime; the instigator’s crime is not accomplished; the reason cause the crime unaccomplished is out of the instigator’s will. Then it describes the specific contents of each element. According to the theory of complicity subordination, attempted instigation has two kinds of situations. It includes attempted crime and discontinuance of crime. There is no doubt that attempted instigation can exists in the first paragraph of article29. As for the provisions of the second paragraph, whether attempted instigation can exist in it or not, there is considerable controversial in academic circles.In order to further understanding of the second paragraph of article twenty-ninth of our Criminal Law, making sure whether it has the possibility of the presence of attempted instigation or not. The paragraph is devoted as a separate chapter to discuss. This part specifically addressed the "instigated person has not committed the instigated crime" including what kinds of cases, and discuss the abetting people in what crimes stages in the cases. It makes analysis and evaluation of the academic argument. Different from other scholars practice, it considers that we should distinguish between the cases and discuss separately. That part can be said to be one of the innovative points of the article. Finally for the legislation suggestions on attempted instigation. The final purpose of this paper is to better guide the judicial practice, through the discussion of the problems of attempted instigation, putting forward to the legislative proposals on the attempted instigation. Article twenty-ninth of the existing criminal law should be modified, clearly stipulates the establishment and punishment of attempted instigation. The second paragraph, which stipulates "the instigated person does not commit the instigated crime", should be stipulated respectively, and set a more reasonable punishment principle. That part can be said to be the second innovative points of the article.