主从犯特殊区分制下“教唆未遂”的理解与适用

Explanation and Application for Abetting Attempted under Special Distinction of Principal and Accessory

我国学者对《刑法》第29条第2款的解读存在着被教唆者未既遂论、教唆犯独立犯罪论和间接正犯未既遂论等观点,然而上述解释都与我国刑事立法不能圆满贴合。我国共犯体系是以作用为标准区分主犯和从犯的特殊区分制。共犯人之间存在事实上的从属关系,这是共同犯罪的本质属性。教唆未发生在共犯关系尚不成立阶段,教唆未遂犯不具有共同犯罪人的属性,以共犯的从属性或独立性解释教唆未遂并无立场。教唆未遂的处罚根据是造成了严重的客观危害,因此未达至的教唆、失败的教唆、无效果的教唆行为因没有现实的客观危害性而不可罚。应将＂被教唆者没有犯被教唆的罪＂解释为教唆行为已经完成,被教唆者虽接受了教唆但实施了与教唆内容无规范包含关系的犯罪。教唆未遂是特殊的预备行为,司法实践中应借鉴主要的大陆法系国家对教唆未遂采取限制处罚政策。

There are many views on the interpretation of Chinese Criminal Law Article 29, paragraph 2. For example, the instigated not accomplishment, the instigator＇s independent commission and indirect criminal not accomplishment. But these theories are not in line with China＇s criminal law. Our common crime system take the effection as a standard accessory to distinguish between the co-prisoners. This is a very special distinction. This is the essential of common crime that the coprisoners have subordinate relationship. Abetting attempted complicity occurs on stage the co-criminal is not established. Abetting attempted criminal is not a common crime, they do not have the instigator＇s subordinate or independence. Instigator penalty is based on causing serious harm, therefore the not reach instigation, failure abetting and ineffective abetting are do not to be punished,since there is no objective hazards. The Article 29, paragraph 2 should be instigated as abetting acts has been completed but the instigated person does not commit the instigated crime,but the instigated person commit other crimes. Abetting attempt is a special preparatory act,punishment should be limited to its.