被教唆者刑事责任新议——我国《刑法》第29条第2款解析

On the Criminal Responsibility of the Instructor:Analysis about Article 29( 2) of the Criminal Code

我国《刑法》第29条第2款应在成立共同犯罪的前提下来理解,而共同故意犯罪需把形成共同故意作为前提。被教唆者没有犯被教唆的罪所包括的情形有:被教唆者没有将被教唆的罪实施达到既遂;被教唆者接受教唆者的教唆,但实施了不同于被教唆之罪的犯罪;被教唆者受到教唆者的教唆,产生了实施有别于被教唆之罪的犯意。对教唆者从减处罚的理由在于整个共同犯罪的罪行未完成。

Article 22, Paragraph 2 of Chinese Criminal Law which should be learned, it have the premises that Joint crime is established, the premise for Joint intentional crime form a common intention, the instigated person has got down to commit the crime but not accomplished, that this situation includes some aspects, such as the instigated person has got down to commit the crime but not accomplished, and the instigated person have other criminal intention, or He car- ried out another criminal act, but his criminal intention produced from the common intention. The reason that the instigator should be reduce penalties is the whole common criminal act could not be accomplished.