Analysis Of Several Issues Of The Instigator

The nature and penalty basementare the fundamental issues in the abettor theory, but they are always in controversy. As the advocates exist, the dilemma of the qualitative theory and justice application of China’s “Criminal Law” Article 29, paragraph 2 comes out. This article attempts to define the nature and penalty basement, in order to explanation the regulation of the Criminal Law, and to find out how to keep balance between its legislation and judicature. The article consists of three parts.The first part put forward the nature of the crime of abettor should be discussed in the context of complicity, but the classification of the accomplice and t the crime of solicitation will bring some problems. Then introduce the theories such as the subordination, the independence, the duality and the abandonment of the abettor, which is based on the accomplice theory. Additionally, there is another theory called independent-crime theory, which is out of the traditional accomplice theory. Then the article goes to define whether it’s performance act or complicity act and draws the conclusion that abettor is subordinate. Adhering to the basic standpoint, I think it also should be amended. As the Criminal Law punishes the instigator in principle currently, it’s not reasonable to carry out the punishment based on the commence of a crime. It is supposed to punish the abettor when the preparation for a crime is on, including the discontinue of the preparation.The second part starts with the analysis of the theoretical predicament of the perpetrator, by consisting on the binary system of perpetrator and accomplice. On the discussion of the penalty basement of the abettor, there are theories of the accomplice liability, the unscrupulous accomplice, the pure cause, the compromise cause and the amending cause. I introduce the theories by analyzing cases, and insist on the use of the pure cause and the compromise cause theories, with the examples of the abetting terrorist in the Amendments Ninth of the Criminal Law.The last part is about the understanding and regulation of the “Criminal Law” Article 29, paragraph 2. The article insists that the instigator shouldn’t be identified as the accomplice if he didn’t take the crime instigated, and analyzes the situation when the accomplice is justified. On how to judge this paragraph, the article reviews various theories, by combining the extraterritorial acts and patterns of independent abetting, to explain the rationality of the theory of independent preparatory crime. I think it’s necessary to restrict the range of independent preparatory crime and offer the optimization suggestions.