Research On The Legislative Perfection Of Attempted Instigation

Cases related to attempted instigation is very common in the practical world,but China's criminal law does not clearly stipulate the concept of instigation and its constitution.The disadvantage in legislation have led scholars to hold their own opinions on the concept of attempted abetting,and various opinions have been endlessly debated,which leads to the strait of processing such cases injudicial practice.On the basis of referring to relevant literature,the author puts forward her own suggestions on improving the legislation of attempted instigation by studying relevant theories,hoping to devote myself to develop the theory of attempted instigation and judicial authority to deal with related cases.Firstly,this article analyzes the the disadvantage in legislation of the concept of attempted instigation and the typical domestic cases,based on that,and analyzes the concept of the attempted instigation and its establishment requirements,and puts forward the author's own point of view,that is,attempted instigation means the instigated person has committed a criminal act but has not succeeded in a crime for reasons other than will.Secondly,study the legislation examples of attempted instigation in other countries,focusing on the analysis of the subjective and objective elements of attempted abetment in Germany and the Anglo-American legal system.Combining with the legislation examples of South Korea,Thailand and other countries,points out that the idea of making attempted incitement a crime is not in line with the trend to restrict state's penal power.Finally,the author draws a conclusion based on the above-mentioned research,that is,the second item of Article 29 of the Criminal Law should be abolished.Attempted instigation refers to the three constitutions which is crime preparation,desistance of a crime and attempted crime,what's more,the attempted instigation forms under these three circumstances should have different penalties.