The so-called one-sided crime means that the actor unilaterally has the intention to commit a crime with others, and commits a crime with them without others knowing it. Uninformed others only bear criminal responsibility for their own actions and do not constitute a joint crime, and there is no objection to this; However, whether the perpetrator can establish one-sided crime and its scope are controversial in criminal law theory at home and abroad.

(1) Whether the one-sided criminal can be established. There is a debate about whether to say this or not.

1. Deny that there is no so-called one-sided crime. For example, Japanese criminal law scholar Uematsu said: "The * * offender regards the will connection between the * * * offenders as an important element ... The so-called one-sided * * offender, due to the lack of important conditions for the establishment of the * * * offender, I think it should be completely denied." [1] Another example is Haruhe Nishihara, who said: "Because the expression of will as a prerequisite for the establishment of the crime of * * * must be mutual, for example, if A knows the intention of B and unilaterally participates in the crime of B, such a one-sided crime of * * * will not be established; Therefore, A's participation is innocent except when independence becomes some crimes. " [2](p. 184) In addition, the former Soviet scholar M·N· Kovalev and China scholar He Bingsong all hold this view. Professor He Bingsong pointed out: "There has always been a debate in criminal law theory about whether one-sided * * * criminals are * * * criminals. We believe that according to the provisions of China's criminal law, it should not be recognized as a * * * offender. Because his intention and behavior are unilateral, not mutual * * * and mutual use, which is inconsistent with the concept of * * * and crime stipulated in our criminal law. The concept of one-sided crime is itself a logical contradiction. " [3]

2. Yes, I believe that one-sided criminals can be established. For example, Hideyoshi Muye, a famous Japanese criminal law scholar, said: "The significance of * * * plus work belongs to the criminal's psychological matters, and their mutual exchange or the exchange between the two sides of the criminal is only an external matter. Therefore, we believe that this meaning, as a subjective element of the crime of * * * *, can be established even on its one-sided occasions. On this occasion, for the party who has this meaning, it will play a role of * * *. [4] Another example is Okada Chaotaro: "In terms of provisions, it is said that * * * is the same (article 60 of daily punishment), that instigation is the same (article 6 of daily punishment1), and that help is the same (article 62 of daily punishment). For the case that only one party has the concept of crime, it is not uncommon to see any words that exclude it, even for people with the same concept. [5] In addition, the former Soviet Union scholar Trayining, the old China scholar Wang Jin and the contemporary China scholar Chen Xingliang all hold this view.

(2) The scope of one-sided crime. People who hold positive views have different opinions on the scope of one-sided crime. To sum up, there are mainly five different views.

1. The existence of one-sided criminals is infinite. It is argued that * * * accomplices (perpetrators), instigators and accomplices (accomplices) can all be established as one-sided * * * offenders. For example, Wang Jin, an old scholar in China, said: "I think that the communication of intentions is a psychological problem of prisoners, and mutual understanding is an external problem. Intention communication is not only a subjective element of * * * crime, but also a one-sided agreement, that is, the effect of * * * crime. In short, if you have this understanding of the same crime, you will set up a party. If you don't have this understanding, you will be sentenced as a separate principal. " [6] Some people in contemporary China think: "In the one-sided accomplice, not only the helper and abettor can constitute a one-sided accomplice, but also the perpetrator can become a one-sided accomplice. " [7]

2. The theory of one-sided accomplice and one-sided helper holds that both accomplice and helper can establish one-sided accomplice. For example, Japanese scholars Saeki Chihiro and Ueda Mao both affirmed the existence of one-sided accomplice and one-sided accomplice [8].

3. One-sided abettor and one-sided helper say that both abettor and helper can form one-sided accomplice. For example, the former Soviet scholar Trayining said: "Therefore, the following conclusions must be drawn. In the case that each criminal lacks mutual understanding of the activities of other criminals, it is entirely possible that there are * * * accomplices. It is only important to note that only when the person subjected to execution does not know other participants (instigators or helpers), the lack of mutual understanding does not rule out accomplices. " [9]

4. One-sided accomplice theory holds that only an accomplice can establish a one-sided accomplice. For example, Japanese scholar Dazhah ǒ ng @ ① Ren said: "Because * * * accomplices act according to their mutual use and complementary behaviors, * * * has already committed the crime and assumed the responsibility of' all principal offenders'. As its subjective elements, the accomplices use each other, complement each other and are indispensable. Therefore, there should be the meaning of * * * joint execution among * * joint criminals, and the concept of * * * accomplice should not be unilaterally recognized. On the contrary, as an accessory, on the one hand, the criminal law only considers it necessary to help the principal offender (article 62 of the criminal law), and at the same time, the punishment is only to investigate the guilt of helping one's own behavior (article 63 of the criminal law). Therefore, as long as the fact of help based on the meaning of help exists, it is enough, and the connection with the meaning of the principal offender is not necessarily considered necessary, and the concept of one-sided help crime should be affirmed. In this way, I think the position of general theory and precedent is appropriate. " [ 10]

5. One-sided tangible collateral theory holds that intangible collateral is not one-sided, only tangible collateral is one-sided. For example, Japanese scholar Kawabata Yasunari said: "Objectively, it is possible to make the behavior of the principal offender easier, even if the principal offender has no awareness of getting help; Article 62 It is natural that the law does not require interesting contact between the helper and the helped, and it is appropriate to admit one-sided accomplice. But on the occasion of spiritual help, if the principal is not aware of the existence of helping behavior, it cannot be said that it is easy to commit a crime. We should think that one-sided accomplice is not established. "[1 1] As we all know, the act of helping is theoretically divided into tangible help or material help and intangible help or spiritual help. The former, for example, provides criminal tools, while the latter, for example, identifies criminal targets. This theory only recognizes one-sided tangible collateral, but does not recognize one-sided intangible collateral. Professor Wu Zhenxing, a scholar in China, also holds this view.

(3) the evaluation of the one-sided crime of * *

As mentioned above, the theory of one-sided * * * crime negation holds that the establishment of * * * crime is based on the interesting mediation between * * * criminals, which unilaterally promotes others to commit crimes. Due to the lack of mediation, the crime of * * * is not established; The author believes that as far as Japanese criminal law is concerned, it may not be appropriate. Because the Japanese criminal law stipulates that "it is an accomplice who helps the principal offender" (Article 62), it does not require the principal offender to know the help of others in order to constitute an accomplice, so one-sided accomplice can be established in interpretation. Moreover, if one-sided accessory is not recognized, and it is claimed that a crime has been committed when it cannot be independent, the criminals who help others will not be punished as they deserve, which is not conducive to social protection. So this statement is not a common view in Japan. As far as China's criminal law is concerned, because China's criminal law clearly stipulates that "* * * accomplices are intentional crimes committed by two or more people" (Article 25), it is easy to make people think that "the concept of one-sided * * * crime is logically contradictory", so some scholars hold the view that one-sided * * * crime is negative. Denying the concept of one-sided crime does not mean that the situation of helping others commit crimes unilaterally does not exist. Scholars who hold this view have different opinions on how to deal with it: some avoid talking about it, while others propose to punish indirect principal offenders. Avoiding talks is avoiding contradictions; As an indirect principal offender, the punishment of the helper is obviously aggravated, and the concepts of one-sided accessory and indirect principal offender are inconsistent. Therefore, some scholars suggested amending the Criminal Law to add "If others do not know how to help others commit crimes, they should be given a lighter, mitigated or exempted punishment". This is naturally a better solution, but how to solve this problem before the criminal law is stipulated remains to be studied. In my opinion, the concepts of * * * crime and * * crime are different, which should be distinguished: * * crime refers to human * * * crime; The term * * * perpetrator sometimes refers to the phenomenon of * * committing the same crime, and sometimes refers to the perpetrator who is helpful to others, such as helping the perpetrator and abetting the perpetrator, which is a general concept corresponding to the principal offender. If it constitutes a crime, the participants need to communicate the meaning of the crime with each other; People who contribute to others' crimes can commit certain crimes, such as assisting in crimes, even without communicating with others. Therefore, the German Criminal Code stipulates: "Whoever intentionally helps others to commit illegal acts is an accomplice" (Article 27, paragraph 1). Accordingly, the famous German criminologist Jesek and others pointed out that for an accomplice, "the principal offender doesn't even need to know the help he provides (so-called secret help)" [12]. The author thinks that China should also adopt the provisions of German and Japanese criminal laws and scholars' explanations. In this way, if the one-sided helper is admitted, there will be no logical contradiction in the concept itself.

As for the one-sided affirmation of * * * crime, internal opinions are quite inconsistent. As mentioned above, the author agrees with the view that one-sided accomplice can be established, and further thinks that one-sided tangible accomplice is more appropriate. The reason is that in social life, it is not uncommon to secretly give tangible help to the perpetrators, such as secretly providing criminal tools and setting obstacles to prevent the victims from escaping. Without punishment, crime will be indulged; If you want to punish, it is natural to punish the one-sided helper, because after all, he only helps others commit crimes. As for one-sided accomplice, it is difficult to happen in real life; Even if it happens, according to the situation, the perpetrator who intentionally commits a crime with others unilaterally can be treated as a single offender, and there is no need to admit a single accomplice. The instigator instigates others to commit a crime, and others intentionally commit a crime because of being instigated, even if the instigated person does not know that it was instigated by others, it does not prevent the instigator from being established. Article 29 of China's criminal law stipulates that "instigating others to commit crimes" is an instigator, but it does not stipulate that the instigated person must know that it is instigated by others, and the instigated person does not know that it is instigated by others. As long as the instigator's words really lead him to commit the crime, then the instigator conforms to the provisions of the criminal law on instigator, so there is no need to admit the one-sided instigator. In legislation, Article 34 of the Provisional New Criminal Law of the Republic of China (19 12) stipulates: "A person who has the same mood as the original offender is still regarded as a * * * offender, although he does not know that he has the same mood." This article does not limit the scope of one-sided words. Article 46 of the Criminal Law of the Republic of China (1928) stipulates: "A person who helps the principal knowing his feelings is regarded as an accessory even if the principal doesn't know his feelings." This article amends the relevant provisions of the provisional new criminal law, and the one-sided accomplice is limited to the one-sided accomplice (helper). 1935 Article 30 of the Criminal Law of the Republic of China also adopted this spirit. In addition, Article 86 of Thailand's Criminal Code stipulates: "It is an accessory to help or facilitate criminals by any means before or during the crime of others ... This also applies to criminals who do not know how to help or facilitate them." This article is limited to one-sided accomplice (accomplice). These legislative cases all admit that one-sided aiding offenders (accomplices) are worth learning from. The author advocates that the criminal responsibility of one-sided helping people can be stipulated in legislation, but thinks that this kind of situation will only exist in the situation of tangible help, and one-sided helping people can also be recognized before the criminal law is stipulated.

Second, the classification of * * * and criminals in China's criminal law.

What is the standard classification of accomplice in Chinese criminal law theory? How to classify? Is abettor an independent crime? Now it is also a controversial issue. To sum up, there are mainly the following points.

The first view is: "China's criminal law has adopted a new four-point system, which is divided into principal, accessory, coerced accessory and instigator. This classification method mainly takes the role of * * * accomplice as the classification standard; At the same time, this classification method also takes into account the division of labor between * * * and criminals. " In particular, the criminal law "classifies instigators into this category, which is conducive to correct conviction. This article clearly stipulates that instigators should be punished according to their role in the same crime." In this way, the classification of instigators is brought into the system with the classification standard of' the role played in the same crime', thus obtaining the unity of classification. "[13] (page 358) This view still has a considerable impact.

The second point of view is that instigators can be divided into principals or accomplices according to the situation, and cannot be listed as independent categories of accomplices with principals and accomplices. The reasons are as follows: (1) Practitioners, organizers, instigators and helpers are sub-items with lower classification level, while principal, accessory and coerced accessory are sub-items with higher classification level. If the instigator is juxtaposed with the principal offender and accessory offender, it is a logical error of superclassification; (2) The sum of the sub-items obtained by classification must be completely equal to the parent item, with the prisoner as the parent item and the principal, accessory and coerced accessory as the sub-items obtained by classification, and they are completely equal. If you add instigator, you will make a logical mistake of too wide classification; (3) Just because the criminal law stipulates the name "instigator", it cannot be considered as an independent category of * * * criminals. If this is the case, the "ringleaders" stipulated in the criminal law are also independent categories of * * * and criminals, which is hard to agree with. [ 14][ 15]

The third view: "Subjective, accessory and coerced accessory are the basic types of * * * criminals classified according to their functions, while instigators are the special types of * * * criminals classified according to their division of labor. ..... Theoretically, accomplices in China's criminal law can be divided into two categories: the first category is divided into organized crime, perpetrator, helper and abettor according to the division of labor; The second category is divided into principal offenders, accomplices and coerced accomplices according to their functions. " In the classification based on division of labor, "except instigator, organizer, perpetrator and helper are not legal types of criminals" [16] (PP 540-54 1).

How to evaluate the above viewpoints? The author still holds the third view that the first two have merits, but both are debatable.

The first view affirms that abettor is an independent category of crime in China's criminal law, which is correct and desirable, but two points are debatable. First, it is believed that instigators classified according to division of labor in China's criminal law are included in the classification system according to function, thus obtaining the unity of classification. This confuses two different classification standards. It should be noted that the instigator is one of the same criminals according to the division of labor. According to the criminal law, the principal or accessory is punished, but the problem of how to punish is not included in the classification system based on "function", so it is impossible to "achieve the unity of classification". Secondly, the instigator is juxtaposed with the principal, accessory and coerced accessory. This is the result of confusing two different classification standards. According to logical rules, a classification can only be based on the same standard, not on two different standards. * * * The accomplice is divided into organized crime, perpetrator, helper and abettor according to the division of labor, and principal, accessory and coerced accomplice according to the function. It is a violation of the above logical rules and a logical error to bring the instigator into the system of principal, accessory and coerced accessory.

The second view points out that the mistake of juxtaposing instigator with principal, accessory and coerced accessory should be affirmed; But there are also two points worth studying. First, it is not in line with the reality of China's criminal law to limit the classification of * * * and criminals to a classification based on "function" and deny the existence of classification based on "division of labor". This view holds that the * * * offender is the mother item, and the principal, accessory and coerced accomplice are the sub-items of the classification, and the sum of the sub-items is exactly equal to the mother item. Adding instigator to the sub-item made a logical mistake of too wide classification. We believe that the criticism of the juxtaposition of instigator with principal offender, accomplice and coerced accomplice is reasonable, but it does not conform to the original intention of the first view. The first view is that instigator is not a sub-item classified by "function", but a sub-item classified by "division of labor". There is no denying the existence of classification based on "division of labor", and its mistake lies in confusing two different standards. The above criticism denies that instigator is one of the sub-items of the classification based on "division of labor", and actually denies the existence of the classification based on "division of labor". Secondly, denying abettor is an independent category of crime in China's criminal law. Indeed, the instigator cannot be juxtaposed with the principal, accessory and coerced accessory, but it cannot be denied that the instigator is one of the types of accomplice in China's criminal law. We believe that whether * * * is an independent category of criminals can only be based on legal provisions. Article 26 of China's criminal law stipulates the principal offender, article 27 stipulates the accessory, article 28 stipulates the coerced accessory, and article 29 stipulates the instigator. Since the principal, accessory and coerced accomplice stipulated in Article 26-28 are all recognized as * * * accomplices, what is the reason to deny that the instigator stipulated in Article 29 is an independent category of * * * accomplices? The second view proves that just because the criminal law stipulates the name of "abettor", it cannot be considered as an accomplice. If so, the "ringleader" stipulated in the criminal law can also be an independent accomplice. This statement seems reasonable, but in fact it makes the logical mistake of exceeding the mark pointed out by the author. According to the criminal law, the instigator is an accomplice in the same position as the principal, accessory and coerced accomplice, and the ringleader is only a kind of principal. According to Article 26 of the Criminal Law, principal offenders include ringleaders who organize and lead criminal groups and principals other than ringleaders. It can be seen that the ringleader is only a kind of principal offender, not in the same position as the instigator, or one level lower than the instigator, so the instigator stipulated in the criminal law is a kind of accomplice, while the ringleader is not a kind of accomplice. The mistake of this view is that it only depends on whether the criminal law stipulates it, not how it is stipulated. The conclusion drawn from this is unconvincing.

Scholars who hold the above views declare in their criminal law textbooks: "China's criminal law only divides * * * criminals into principal offenders, accomplices and coerced accomplices; As for organized crime, (* * * *) principal offender, abettor and helper, it is only a theoretical classification. " [17] Here, it is considered that the instigator is a theoretical classification of * * * and the criminal, that is, it is still denied that the instigator is a classification of * * * and the criminal stipulated in China's criminal law. We believe that organized crime, perpetrators, instigators and abettors are indeed theoretical classifications of China's criminal law, but instigators are not only a theoretical classification of * * * and criminals, but also a special category of * * * and criminals stipulated in the criminal law. It is considered that abettor is only a theoretical classification, that is, it denies that there are provisions about it in criminal law. Then, if there are the same explicit provisions as the principal, accessory and coerced accomplice in the criminal law, how should they be explained? The author of the book then classifies the principal offender, accessory offender and coerced accomplice as "the legal classification of * * * offenders", where "law" naturally refers to the provisions of criminal law; The criminal law also stipulates the instigator, why is it excluded from the "statutory"? It's really hard to understand.

We still believe that the third view is correct. When some scholars agree with this view, they say: I think the third view mentioned above solves this problem better. Those who hold this view, on the one hand, affirm that instigator is an independent crime type, on the other hand, insist on the principle of identity of classification standards, and only think that instigator is the result of division of labor, while principal, accessory and coerced are the result of functional classification. Although the two classification results cannot be tied, they can exist at the same time. Because the classification standard is the same, it doesn't mean that a thing can only be classified in one way. In fact, it can be classified by different standards from different angles. Overlapping classification made by different standards is also a very common and normal phenomenon. For example, an instigator may be both a principal and an accessory. This is not a logical error, but reflects the complexity of objective things and the universal connection between things. [18] This argument further illustrates the correctness of the third viewpoint.

Third, whether the instigator has duality.

(A) the origin of the problem

In the theory of * * * crime, there is a dispute between the theory of * * * criminal subordination and the theory of * * * criminal independence among western criminal law scholars. Influenced by this debate, some criminal law scholars in China put forward the view that instigators have duality when studying the nature of instigators in the early 1980s, and considered that instigators have both subordination and independence. The instigator's criminal intention can only be realized through the identification of the instigated person and the implementation of the instigated criminal act, so as far as the relationship between the instigator and the instigated person is concerned, the instigator is in a subordinate position and thus has a subordinate nature. However, the instigator's instigation itself has shown the seriousness of social harm. Whether the instigated person commits a crime or not, the instigator itself should be regarded as a crime, so the instigator is in a relatively independent position among the * * * criminals, so it has relative independence [19]. Subsequently, some scholars put forward that the instigation in China's criminal law is only an independent point of view, arguing that the instigation of the instigator itself is an independent crime, and whether the instigated person commits a crime has no influence on the establishment of the instigator. The instigator is an independent subject to be punished, not subordinate to the executor, but independent. [20] Later, some scholars put forward the negative theory of subordination, independence and duality, arguing that instigators in China's criminal law have no attribution, independence and duality. The stipulation of abettor in China's criminal law completely abandons the so-called duality conclusion, and it has no theoretical or practical significance to discuss whether abettor in China's criminal law is subordinate, independent or dualistic. [13](p.368) Since then, dualism has been endorsed by some scholars. On the basis of affirming dualism, some amendments have been put forward: if some scholars suggest that abettor is a legal concept, it is necessary to demonstrate the independence or subordination of abettor by combining the legal provisions of a country. It is believed that the instigator stipulated in Article 26 of China's Criminal Law does have duality, but it is mainly independent. [2 1] Some scholars put forward the theory of the unity of * * * offender's subordination and independence, which are dialectical unity: subordination is based on relative independence, while independence is independence on the premise of relative subordination. Therefore, in the duality of this crime, there is no question of who is the master and who is the slave. [22] Scholars who advocate denying duality see that the theory of duality has not died out, but has developed, so they launched a comprehensive review of duality in their new books. Academic research is always developing in constant debate, whether it is a good thing or not. Based on this, the author would like to express his views on the above controversial issues. Because the debate needs to reach the same standard, this paper first introduces the discussion of the subordination and independence of * * * * by western scholars.

(B) Western criminal law scholars' theory about the subordination of * * * criminals and the independence of * * * criminals.

1. General discussion on * * subordination and independence

Professor Haruo Nishihara, a Japanese scholar, said: "The so-called crime of * * * is subordinate, which means that in order to establish a crime, the principal offender should at least start to commit the crime. The theory of * * * offender's subordination is called * * * offender's subordination theory, which corresponds to the theory of * * * offender's independence. The independence theory of * * * criminals means that the punishability of * * criminals exists in the behavior of * * * criminals. * * If a criminal wants to establish a crime, it is not necessary for the principal to start committing the crime, which advocates the independence of * * * criminals. The general theory of our country is to establish the theory of * * * crime from the attribute. " [2] (page 377) It should be noted that the * * * offender mentioned here refers to the * * * offender in a narrow sense, that is, it only refers to the instigator and the helper (accomplice).

Japanese scholar Dazhah ǒ ng @ ① Ren has discussed this in detail. He pointed out: * * * The independence theory of criminals holds that instigators and accomplices are also anti-social manifestations of actors, and they have causal power to point to the result of crimes, so they should be punished by penalties themselves, so they are independent and inherent crimes. According to the subordinate theory of * * * criminals, it is considered that abettors and accomplices in the position of indirect principal criminals only constitute crimes if they are subordinate to the direct principal criminals, so they can be called "subordinate * * * criminals". There are substantive and formal reasons to admit that "accessory" has its own nature: in essence, the behavior of the principal offender has the realistic danger and aggression of realizing a certain crime, while the behavior of the instigator and accomplice only has the danger and aggression of realizing a certain crime through the existence of the principal offender; Formally, the current criminal law is obviously based on the theory of subordination of * * * criminals, that is, Article 6 1 of the Criminal Law (Japan) stipulates that "instigating others to commit crimes" can be regarded as the instigator's subordination to the principal's will. [23]

German scholar Jesek and others wrote in their works: "* * criminals (instigators and helpers) exist by the existence of intentional principal offenders (accessory offenders), because the illegal elements stipulated in Articles 26 and 27 can only be realized when the principal offender acts." [12] (page 792) They think that the provisions of Articles 26 and 27 of the German Criminal Law restrict the subordination, and at the same time point out: "In terms of liability, Article 29 completely excludes the subordination, which is the inevitable result of the restriction of subordination by Articles 26 and 27. The principle of independence of responsibility means that if many people participate in a crime, each participant will be punished only according to his own responsibility. " [12] (page 800) Article 29 of the German Criminal Code (the punishment for * * * * is independent) stipulates: "If several people commit a crime together, they shall be punished according to their own sins, but the punishment for others has no influence on them." Here, Jesek and others discussed the subordination and responsibility of the crime of * * *, that is, the independence of punishment for * * *.

2. Different understandings of "accessory attribute of criminals"

Japanese scholar Saito said: "The subordination of the above-mentioned crime of * * * is considered to have two meanings. Namely: first, subordinate to the establishment. In order to establish a crime, an instigator or an accessory must at least commit a crime; The second is the subordination of punishment. In order for the instigator or accessory to be punished, the principal must be punished, which means that the instigator or accessory is also punished. " [24]

Dr. Hirano Ryoichi "divides the subordination of criminals into three categories, which are named implementation subordination, factor subordination and accusation subordination. (1) The implementation of subordination is related to whether the principal offender needs to implement the act as a constituent element of the crime of * * * *; (2) The subordination of elements is the question of what elements the principal offender needs to have; (3) The subordination of charges is a question of whether the * * * offender must have the same charges as the principal offender. In the above classification, (1) is a question of whether there is an attribute, (2) is a question of the degree of attribute, and (3) is a question of the same crime or the same behavior. " [25]

Shinichi Yamanaka pointed out that the concept of * * offender's subordination is used in the following four senses: (1) the punishment of the subordinate offender is subordinate to the punishment of the principal offender; (2) Attribute of the crime = * * * The crime committed is subordinate to the crime being committed; (3) Subordinate nature of punishment = * * * The punishment basis of crime is subordinate to the crime being committed; (4) Subordination of elements = * * * The punishment of a crime is subordinate to the constitutive elements or illegality or the responsibility of the principal offender [26].

Although the above viewpoints are different, they all clarify the meaning of * * * from different aspects, which is helpful for us to accurately understand the meaning of * * * and whether the instigator in our criminal law has no attribute and independence.

(3) Response to objections

The author advocates that instigators have duality. The specific discussion is: "... to demonstrate the subordination or independence of the instigator, what does subordination mean?" Slavery usually includes two aspects: criminal slaves and punished slaves. The former means that the instigator consists of the instigated person who commits a crime, and if the instigated person does not commit a crime, the instigator is not established. The instigator has also completed, attempted or prepared to commit a crime. The latter refers to punishing the instigator according to the punishment of the perpetrator. The instigator stipulated in the criminal law is subordinate if it fully conforms to the above situation, and independent if it does not or does not fully conform to the above situation. On this basis, we believe that the instigator stipulated in our criminal law does have duality, but independence is the main factor. Specifically, the instigator stipulated in Article 29 1 of the Criminal Law can only be established if the instigated person commits a crime. At this point, the instigator and the instigated constitute the same criminal relationship. The criminal act committed by the instigated person is criminal preparation, attempted or accomplished, and so is the instigator. This is the subordination of abetting crime. However, the criminal responsibility stipulated in this paragraph is to be punished according to its role in the same crime, not according to the punishment of the perpetrator. This is the independence of abettor punishment. The instigator mentioned in the second paragraph of Article 29 refers to the situation that the instigated person has not committed the instigated crime. In this case, the instigator and the abetted do not have the same criminal relationship at all, but the criminal law still stipulates criminal responsibility for them. The instigator here is neither subordinate to crime nor punishment, that is, only independent. [16](p.556) The dualist raised an objection to this proposition. The author respects his right to freedom of academic discussion, and finds some references enlightening, but on the whole, he thinks his views are debatable.

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