“未遂的教唆”与“教唆的未遂”可罚性探究

The discussion on the punishability of “the attempted instigation” and “the attempt of the instigation”

"未遂的教唆""教唆的未遂""未遂犯的教唆"三个概念含义各不相同。在未遂的教唆中,由于教唆者自始至终仅仅是以被教唆者终于未遂的意思去对被教唆者进行教唆,欠缺教唆故意,因而不可罚。但是如果依照教唆者的教唆内容,被教唆者作为正犯实施的实行行为仍具有导致法益侵害结果发生的危险性时,此时则难以否认教唆者的教唆故意,对教唆者应以教唆犯论处。对于教唆的未遂的可罚性,在教唆者和被教唆者形成共犯关系时,应按照《刑法》第二十九条第一款的规定进行处罚。如果教唆者和被教唆者不能成立共犯关系,即被教唆的人没有犯被教唆的罪时,则应适用《刑法》第二十九条第二款的规定进行处罚。

The meanings of the three concepts of'the attempted instigation','the attempt of the instigation'and'the instigation of attempted crimes'are different.In the attempted instigation,since the instigator only teaches the instigated person with the meaning of being finally attempted by the instigator all the way and lacks deliberation,it cannot be punished.However,if the perpetrating act that the instigated person as the principal offender takes is still at risk of causing the result of the legal interests encroached on,then it is difficult to deny the purpose of instigator.So the instigator should be identified as instigation crime.For the punishability of the attempt of the instigation,the instigator and the instigated person should be punished under the first paragraph of Article 29 of The Criminal Law when they are in complicity relation.If they are not accomplices and the instigated person doesn’t commit the crime that the instigator teaches,then the application of penalties should rely on the second paragraph of Article 29 of The Criminal Law.