教唆犯的极端从属性问题辨析

An Analysis of the Issue on the Extreme Subordination of the Instigator

限制从属性说以"责任应个别地考察"为根据,否定教唆犯的成立以正犯的有责性为必要。然而,责任的独立性仅能够说明正犯的责任不是教唆犯责任的充分条件。教唆犯对正犯的故意是否具有从属性,关键在于明确教唆犯同直接正犯和间接正犯间的关系在本质上并非相同。从能否引起他人行为的难易程度的角度而言,教唆犯所体现的缺陷性态度较间接正犯更为强烈,由此可以说明教唆犯较间接正犯的性质更为严重。

The theory of limited subordination, according to the view that the responsibility should be judged in- dividually, denies that the identification of instigator should be necessarily based on the responsibility of the prin- cipal offender. However the independency of responsibility can only show that the responsibility of the principal offender is not the sufficient condition for the responsibility of the instigator. Whether the instigator＇ s subordina- tion for the criminal intent of the principal offender exists or not, the key point lies in clarifying that the relation- ship between the instigator and the direct principal offender is in nature different from that between the instigator and the indirect principal offender. In terms of the degree of difficulty in causing the action of others, the insti- gator reflects more vicious attitudes than the indirect principal offender. Hence the instigator is more severe in nature than the indirect principal offender.