On Two Natures Of Instigation: The Explanation Of 2^nd Paragraph Of 29^th Article Of The Criminal Law

Second paragraph of article 29 of the criminal law provisions, is generally considered to be the punishment of the attempted instigation, which is an abettor who fail to abet someone to commit a crime. In the academia, the problem whether attempted instigation should be punished, mainly embodied in the debate on the nature of attempted instigation.As to the nature of attempted solicitation, there are theories such as subservience of abettor, independence of abettor, duality of abettor and single perpetrator system. The theory of subservience of abettor holds that the punishment of the instigator is based on the premise that the principle criminal has started to commit the crime. Although this theory is a powerful theory in academia currently, it violates the second paragraph of article 29 of criminal law, at least literally. If forced the combination, there would be injustice on punishment. Therefore some scholars interpreted attempted instigation as instigation of attempted crime, explained attempted instigation as indirect attempted crime, or treat the paragraph as an exception, or a preparatory crime. They tried to explain by logical to reach the harmonious between the second paragraph of article 29 of criminal law and the theory.The theory of independence of abettor holds that instigator should be punished independently.The theory of duality holds that abettor has dependency on one hand, on the other hand is independent. The theory of single perpetrator system thinks that China’s criminal law adopts a single perpetrator system, instigator should be punished as principal criminal. Those three latter theories try to deny the subservience of instigation, in order to testify the rationality of the second paragraph of article 29 of the criminal law and keep its meaning remains literal.The theories above are all questionable.In fact, whether abettor is subservient and attempted instigation should be punished independently is two different questions. That is to say, instigation has a dual nature: as accomplice of crime it is subservient, and as preparation crime when there is no principal crime.In the context of joint crime, the instigator is subservient to the principal crime behavior. First of all, no matter from the point of law or from the theory itself, single perpetuator system does not apply to China’s criminal law. The criminal law in our country adopt a distinguish system; Secondly, because of the sentencing needs, the foundation of punishment should be substantial. Thirdly, principle crime is the start of the violation of legal interests and of the punishment. Therefore, instigator should be punished on the premise of the practice of principal crime behavior which is the theory of subservience of the instigation.In addition, this theory need to be modified. Instigation is not only subservient to the commitment of crime,but also subservient to the crime in preparation.Therefore, Chinese criminal law should adopt double distinguish system, in a joint crime, principal crime is crucial and indispensable, instigation is subservient. Principal crime has an important role in conviction it is the reason why the instigator violate the law, and decide the criminal pattern of the instigator. In sentencing, principal and accomplice apply different article. They are different, but it is possible to clarify the relationship.In the case of no principal crime, instigation is a special preparatory crime. It prepares the conspiracy. From the perspective of the criminal policy, punishment of attempted instigation is supported by legislation in many countries. Common law countries punish attempted instigation, and as a country which support the theory of subservience of instigation, Germany also punish attempted instigation.In theory, attempted instigation and criminal preparatory has natural similarity. As to the difference, attempted instigation prepares the conspiracy, which is the reason why paragraph 2 of article 29 exists. To attempted solicitation, we shall also apply to criminal law article 22 and paragraph 2 of article 29 simultaneously. This not only achieve the balanced the offense and can alleviate a confusing now judicial application.