论教唆犯未遂的范围——刑法第29条第2款的检讨与完善

On the Scope of the Attempt of So1icitation——The analysis and perfectionof the second paragraph of article 29 of the Criminal Law

教唆犯的未遂涉及到教唆犯和未遂犯两个刑法理论上有争议的犯罪形态,我国刑法学界一般认为刑法第29条第1款所规定的教唆犯存在未遂形态,而对第2款所规定的教唆犯属于何种犯罪形态则存有争议。本文拟就教唆犯未遂的范围略陈管见,探讨“被教唆的人没有犯被教唆的罪”的含义,指出刑法第29条第2款所存在的缺陷并对该款提出完善建议。

The attempt of solicitation comes down to two disputed criminal patterns namely abetment and attempted offense in the theory of criminal law, scholars in the kingdom of criminal jurisprudence commonly think that there is attempted offense of abetment in the first Paragraph of Article 29 of the Criminal Law, but there is dispute about which criminal pattern abetment in the second Paragraph attributes to. This paper plans to outline the scope of the attempt of solicitation, probe into the signification of ＂the instigated person has not committed the instigated crime＂, point out the limitation in the second Paragraph of Article 29 of the Criminal Law and put forward advice about its perfection.