On the legislative reconstruction of abetting crime
Abstract: In modern criminal law, scholars all over the world generally put instigators in * * * accomplices for research. Although it is reasonable to regard abetting crime as a special accomplice, it is difficult to justify it in many aspects. The author thinks that abetting crime can be added to the criminal law without the theory of accomplice in crime, and abetting behavior can be discussed as an independent crime type. This paper discusses the nature, concept, elements of establishment, conviction and sentencing of instigator from a unique perspective, hoping to have a further understanding of instigator's crime.
Keywords: abettor abetting crime * * * same crime
On the reconstruction of abetting crime
Abstract: In the theory of modern criminal law, scholars all over the world generally include instigators in the research scope of joint crime. As a special accomplice, abettor is reasonable to some extent, but it is difficult to justify itself in many aspects. The author thinks that it can be separated from the theory of accomplice and the crime of instigation can be established in the criminal law. The crime of instigation can be discussed as an independent crime type. This paper discusses the nature, concept, constitutive requirements and punishment principle of instigator from a unique perspective. I hope this article can help us further understand the crime of instigation.
Keywords: instigator; Instigation; Conspiracy.
Modern abettor theory developed mainly after the victory of bourgeois revolution. Feuerbach, the originator of modern criminal law, played a pioneering role in this respect and provided a classic philosophical paradigm for the study of abettor theory. However, practice has proved that there are some problems in bringing instigators into the study of the same crime.
The instigator can be separated from the crime of * * * and studied as an independent crime type (called Independent type theory for the time being). It is suggested that the crime of instigation should be added to the criminal code. The specific ideas are as follows:
First, the concept of abetting crime.
From the category of accomplice in crime, abetting crime can be defined as the act of intentionally abetting others to commit serious illegal acts. In order to better understand this concept, we should pay attention to the following points:
First of all, the instigator must be intentional. Because the punishment of instigators is a kind of subjective and vicious punishment, instigators should have subjective intention to destroy the social management order and cause danger to others. It was his intention that punished the instigator. On the other hand, negligent crime does not have the intention of expecting others to harm society, and its subjective malignancy is minimal, which is not suitable for conviction and sentencing in criminal law. Moreover, in the identification of * * * accomplices, it is emphasized that more than two people "intentionally" commit crimes, and in the identification of instigators who are separated from the form of * * * accomplices, it is necessary to emphasize "intentionally".
Secondly, instigators instigate illegal acts rather than just criminal acts, that is, instigators include serious illegal acts in addition to criminal acts stipulated in the specific provisions of the criminal law. This is quite different from the view generally recognized by scholars. The author believes that the instigator has repeatedly instigated several abetted people to commit petty theft and other illegal acts that do not constitute crimes, which are subjective and vicious and have extremely bad social impact. As long as it meets the constitutive requirements of instigator, it should be investigated by criminal law. It is precisely because of this defect of the current criminal law that criminals instigate others (especially minors) to commit theft at stations and docks.
Third, the instigated "others" should include everyone. Traditionally, "others" refer to people with criminal responsibility, including people with full responsibility and people with limited criminal responsibility who act within their consciousness and will. If a person who has not reached the legal age and has no ability to identify and control his own behavior commits a crime, the instigated person will only be used as a criminal tool, that is, an indirect principal offender will be established, and the instigator will be convicted and sentenced for the instigated crime. The author believes that since the instigator is assumed to be an independent crime, whether the instigator instigates the instigated person to commit a crime or commits an illegal act (which does not meet the criminal standard), if the circumstances are serious and need to be punished by criminal law, the instigator will be convicted. The particularity of the object "a person who has not reached the legal age and has no ability to identify and control his own behavior" does not affect the establishment of the instigator itself, and it is irrelevant whether the instigated person is investigated by criminal law, but it can be used as a sentencing circumstance.
Fourthly, the instigator itself has social harm and criminal danger, but its substantial infringement is manifested through the criminal's media, and the instigator's behavior is not limited by the implementation behavior. The instigated person is a person with independent thinking ability and discriminating ability, and the instigator's crime can deliberately stop at the instigated person without substantial infringement. The crime of instigation is a kind of punishment for instigation, regardless of whether the instigated person has carried out the practice. Therefore, it is not necessary to emphasize the abetting result in the definition, that is, the element of "causing or failing to cause others to commit crimes". Of course, this does not mean that the punishment of the instigator is divorced from whether the instigated person has carried out the act, but is considered in the sentencing circumstances.
Fifth, the methods and means of instigation take many forms, including instigation, general intimidation, begging, persuasion, incitement, buying, instigation, seduction and other acts. Some scholars believe that these behaviors can be summarized as "instigation" and "instigation". {1} The author thinks that "instigation" and "instigation" can be summarized as "instigation", which is of little significance. It is more in line with the requirements of concise legislation to classify these acts as "instigation" than to classify them as "instigation" and "instigation" in general.
Second, the constitutive elements of the crime of instigation
The western bourgeoisie also discussed the issue of "the establishment of instigator" in the theory of "the establishment of * * * offender". There are three main theories about the establishment of * * * crime, namely, the theory of crime, the theory of behavior and the theory of subject with the same meaning. The author thinks that starting from the independence of abetting crime itself, we should scientifically put forward four constitutive elements of abetting crime: object of crime, objective aspect, subject and subjective aspect.
1, the instigator's object element is the social management order, not the object of the abettor's infringement, but the object of the abettor's infringement can be regarded as an indirect object. When instigating, it doesn't matter whether there is an indirect object, such as instigating a pregnant woman to kill her child after giving birth. "Social management order in a broad sense includes production order, work order, teaching order and people's normal life order. All criminal acts violate a certain management order. ....., the narrow sense of social management order refers to the social management order other than the similar objects violated by crimes stipulated in other chapters of the specific provisions of the Criminal Law. " {2} instigating and disrupting the social management order. In view of the universality of the object violated by the instigator and its identity with the crime of imparting criminal methods, we can conclude that the objective element of the instigator is social management order.
2. The objective requirement is that the perpetrator has committed a serious instigation that can cause others to commit a crime intentionally. The objective aspects include the following aspects:
(1), the content of abetting behavior, in addition to the specific crimes stipulated in the specific provisions of China's criminal law, also includes other serious illegal acts not stipulated in the criminal law, which can be discretionary by the judge. Some scholars believe that some contents should be excluded here, such as the crime of sedition stipulated in the criminal law (that is, the crime of inciting secession; Crime of inciting subversion of state power; Crime of inciting national hatred and discrimination; Crime of inciting violence to resist law enforcement; Crime of inciting soldiers to flee the army, etc. As it has been separately stipulated as a specific crime in the criminal law, it should be excluded from the abettor's abetting content. In addition, the same is true of the crimes of seduction and instigation stipulated in the specific provisions of the criminal law, such as "the crime of enticing young girls into prostitution". The author thinks that the five kinds of sedition crimes do not constitute instigators themselves, because the instigated person must be a specific person, one person or many people, while the sedition crime refers to instigation to an unspecified person, usually to many people. But this does not prevent these five kinds of incitement crimes from becoming the abetting content of instigators. Take the crime of inciting secession as an example. A commits the crime of inciting secession, and B instigates A to commit the crime. Each crime has its own merits. B's behavior meets the conditions for the establishment of an instigator and still constitutes an instigator. As for the crime of "luring young girls into prostitution", it is different from the crime of incitement. It has set up an instigator, but because the criminal law lists it separately, it can be excluded from the content of instigation, but the crime of "luring young girls into prostitution" cannot be excluded for the same reason. The content of instigation can be action or omission. If you instigate a mother not to breastfeed her baby and starve it to death, it is an instigation to the omission.
(2) The way of instigation can only be positive. There are two opinions on the ways of abetting behavior in China: one is to affirm that both actions and omissions are abetting behaviors, which can constitute the instigator's omission crime; The other is whether it is conclusive or not, that instigation can only be implemented as an act. If the abettor's crime of omission is established, there must be a premise that the abettor has the obligation to prevent some harmful consequences caused by his previous behavior. But in fact, the instigator's first act of instigating others has constituted the crime of instigation. As for the instigator's behavior to prevent the abetted crime from causing harm, it can only be used as a sentencing circumstance.
(3) The intensity of instigation should be "enough to cause the intention of the instigated person". The intensity of instigation can be regarded as the inherent regulation of instigation and can be stipulated in the constitutive requirements.
(4) The instigator is the owner. This point has been explained in the concept and will not be repeated here.
3. The subject is a general subject, that is, a person who has reached the age of 16 and has the capacity for criminal responsibility. Professor Li Xihui's views on the main contents have been mentioned above. The author thinks that Professor Li's view is based on the traditional theory of * * * taking crime as the basis. As an independent crime, the instigator is less subjective and vicious, which can't be compared with the eight kinds of violent crimes stipulated in the Criminal Law, in which the limited liability person below 14 16 should also bear the responsibility.
4. The subjective element is intention, including direct intention and indirect intention. That is, the instigator knows that his instigation will make others commit crimes intentionally, and then commit crimes and cause certain harmful consequences, and hopes or lets this result happen. The instigation here has a dual nature, that is, "on the one hand, the instigator himself must commit a crime intentionally;" Moreover, its instigation must also be aimed at making others commit crimes intentionally. " {3}
To sum up, as long as the four requirements of the object, objective aspect, subject and subjective aspect of the crime are met, the instigator is established.
Three. Conviction and sentencing of instigator
Under the accomplice system, the criminal laws of various countries usually determine the charges of instigators. Article 29 of China's criminal law stipulates, "? Whoever instigates others to commit a crime shall be punished according to his role in the joint crime. Whoever instigates a person under the age of 18 to commit a crime shall be given a heavier punishment. If the instigated person has not committed the instigated crime, the instigator may be given a lighter or mitigated punishment. " Article 1 15 of the Italian Criminal Code stipulates that in the case of instigating others to commit crimes, if they have been instigated but have not committed crimes, they will not be punished. However, in the case of being instigated by a felony, the judge can apply security measures. If the instigation is not accepted, it is a felony instigation, and the instigator can be punished by public security measures. The author believes that in judicial practice, we should resolutely avoid using the far-fetched view of criminals to deal with abetting crimes, and when deciding the punishment for abettors, we should comprehensively consider the abetting plot and the degree of social harm. The so-called abetting plot includes the nature, content, object, method and frequency of abetting. The degree of social harm refers to the actual harm to society caused by abetting behavior, which mainly examines whether the abetted person has carried out abetting behavior and whether the abetted behavior itself belongs to the crime stipulated in the specific provisions of criminal law. Only by comprehensively analyzing the role and influence of abetting behavior can we correctly grasp sentencing. In addition, the following points should be noted:
1. Once the abettor begins to commit the abetting act, the crime is completed, which meets the constitutive requirements and thus constitutes a crime. Therefore, there is no distinction between accomplished and attempted abetting crime, and whether the abetted person has carried out the act is not the standard for determining the accomplished or attempted abetting crime. After the instigation is completed, the instigated person, as the object of instigation, has changed his mind and become the completed form of crime. Because the completed form of crime is different from the prepared form of crime and the suspended form of crime. The author believes that in view of the principle of modesty and its social harm, criminal punishment should not be given to the preparatory offender and the discontinued offender in the preparatory stage of the instigator.
2. Whether the identity of the instigator affects the sentencing of the instigator. If a person without a specific identity instigates a person with a specific identity to commit a crime, and the instigated person causes "heavier punishment" or "lighter, mitigated or exempted punishment" because of his specific identity, it shall not be extended to the instigator without that identity. For example, ordinary people A instigated state functionaries B to be illegally detained. If a heavier punishment is required because of B's identity, the punishment for A shall not be aggravated according to the circumstances.
3. The criminal responsibility of indirect instigator should be clarified. Indirect abettor refers to the intentional situation that the abettor indirectly transmits the abetting contents of others to others through the intermediary of other third persons with criminal responsibility. There is no doubt that the indirect instigator has the intention and behavior of instigation, but the indirect instigator who lasts more than three times is not punishable. As for its responsibility, the author thinks that it can be directly stipulated that whoever instigates the instigator will be punished as an instigator.
Four. conclusion
To sum up, for instigators, the provisions of Article 29 of the Criminal Law on * * * accomplices should be abolished, and at the same time, the crime of instigation should be added to the chapter on the crime of disturbing social management order. In sentencing, it is suggested that the general sentence should be fixed-term imprisonment of not more than three years, criminal detention or control; If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years; If the circumstances are especially serious, they shall be sentenced to fixed-term imprisonment of not less than seven years or life imprisonment. At the same time, if the circumstances are particularly serious, there should be strict restrictions, such as only instigating minors to commit specific violent crimes, which not only punishes the instigator, but also conforms to the nature of the instigator. At the same time, it should be stipulated that if the instigated person has not committed the instigated crime, the punishment for the instigator may be mitigated or exempted. In addition, in view of the nature of instigators, it is particularly necessary to strengthen education and reform of instigators.
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Precautions:
{1} Wei Dong. Research on instigator [M]. Beijing: People's Public Security University Press of China, 2002+005.
{2} Gao Mingxuan, Ma Kechang. Criminal law [M] Beijing: China Legal Publishing House, 1999.933.
{3} Sue. General theory of criminal law: general theory of crime [M]. Taipei: Taiwan Province Dida Printing Company Limited, 1998.443.