未遂教唆不可罚的法教义学解释

The Legal-dogmaticsExplanation of the Reason Why Attempted Instigation Shall not be Punished

未遂教唆是指教唆人出于使被教唆人的实行行为一开始就只能以未遂告终的意思而进行的教唆。未遂教唆不可罚的法教义学解释可以从两个角度展开:一是从教唆故意与一般故意的关系看,教唆故意是一般故意的具体化与特殊形式,我国刑法中教唆故意的内容不仅包括引起被教唆者的犯罪故意与犯罪行为,而且包括由被教唆者行为所导致的法益侵害结果。二是从共同犯罪立法模式的角度,我国的共同犯罪立法模式属于统一制正犯立法模式,根据统一制正犯原理,教唆故意应当及于构成要件结果,未遂教唆是不可罚的。在被教唆者接受教唆且其实行行为引起了法益侵害结果发生的情况下,教唆者对于法益侵害结果的心理态度属于过于自信的过失,在具备其他犯罪构成要件的情况下,应当追究其过失犯罪的刑事责任。

Attempted instigation usually refers that the instigator implements instigating act with an intention that the instigated person＇s act of perpetrating will come to an end as attempted crime. The le- gal-dogmatics explanation of the reason why attempted instigation shall not he punished can be from two perspectives： first is the relation between instigation intent and general intent. In the view of relation between instigation intent and general intent, instigation intent is the embodiment and specific form of general intent and belongs to general intent. In criminal law of China, the content of instigation intent not only contains criminal intent and crime which are induced by the instigator, but also contains results of violating legal interest which are led by the instigated person＇s act. Second is from the perspective of the legislative mode of joint crime which is the uniform principal offender legislative mode in China. Accord- ing to the uniform principal offender theory, instigation intent should contain consequence of elements of crime and attempted instigation should not be punished. Even the instigated person＇s act which is imple- mented as the instigation is risky to lead to consequence of elements of crime, attempted instigation should not be punished. When instigated person accepts the instigation and his act of perpetrating leads to consequence of elements of crime, instigated person＇s mental attitudes to consequence of elements of crime is negligence with undue assumption and if instigator＇s act satisfies the elements of another crime, he should be prosecuted for his criminal liability.