论教唆未遂之犯罪形态——刑法第29条第2款的检讨与完善

On the Criminous Modality of Uncommitted Instigation——The analysis and perfectionof the second paragraph of article 29 of the Criminal Law

教唆未遂涉及到教唆犯和未遂犯两个刑法理论上有争议的问题。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。本文拟就教唆未遂的犯罪形态略陈管见,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。

Abetting attempted involved and abettor guilty of attempted criminal law theory, the two contentious issues, China＇ s criminal law scholars generally considered section 29 of the Criminal Code, paragraph 1, provided there is an attempted form of abettor, but provided for in paragraph 2 of the instigator what kind of crime is controversial. In this paper, on the instigation of the crime attempted slightly Chen observations, to explore ＂ those who were not guilty of abetting abetting the crime of being＂ the meaning of that section 29 of the Criminal Code, paragraph 2, the existence of defects and which put forward a sound proposal.