论教唆未遂的处罚
发布时间：2018-10-18 16:28
【摘要】：教唆未遂的处罚问题研究并不是将教唆犯与未遂犯理论简单的结合，进而讨论教唆犯未遂形态的处罚问题。教唆未遂情形下教唆行为的处罚依据更需要从教唆者的行为本身出发来考察，其行为本质是单独犯罪预备形态的表现形式。因此，无论从教唆犯的性质讨论还是共犯成立体系的角度出发对此的论证都不合理。考虑到教唆未遂的行为对刑法所保护法益可能造成的高度危险，其处罚根据的讨论需要结合现代刑事政策理论发展，理顺犯罪论体系与刑事政策的新型关系，才能更好地说明对教唆未遂处罚的合理性。借鉴大陆法系代表性德国的刑事立法与理论研究，可以进一步明确我国刑法第29条第2款规定的教唆未遂的处罚范围，并深入论证在我国当下立法体系之下将教唆未遂的处罚视为处罚单独犯罪预备犯的合理性。整合上述的研究观点和论证思路，全文主要分为以下三大部分： 文章的第一部分首先针对“教唆未遂”的概念进行合理的界定并明晰教唆未遂的不同情形，在此基础上综合分析阐述我国刑法有关教唆未遂规定之第29条第2款，明确本文主要探讨解决的问题。本部分主要分三个方面指明：刑法第29条第2款并非针对典型共同犯罪的规定；教唆未遂中“教唆行为”应当定位于实行行为的性质；第29条第2款规定可能引发处罚不平衡的问题是立法层面的问题，并不是否定教唆未遂处罚的理由。 文章的第二部分主要介绍现存不同学说就刑法第29条第2款的内容规定以及教唆未遂处罚的不同见解，并作综合评析，从教唆犯独立性说、二重性说、从属性说以及单一正犯体系角度展开。通过对以上观点的评述，明确本文的立论基础，教唆未遂规定不应该隶属共犯范畴问题，宜以单独犯罪预备认定，从教唆犯性质讨论教唆未遂可罚性并不适当，，而教唆未遂的处罚与坚持教唆犯从属性并不相违背，并认为刑法第29条第2款中“教唆犯”的真正含义是教唆者。在此基础之上，坚持了教唆未遂处罚的立场，并从认为教唆未遂的处罚反映了现代社会中刑罚触角前伸，应对社会风险的刑事政策之使然，也是现代刑法体系与刑事政策的新型关系的重要体现。 文章的第三部分主要进一步论证将教唆未遂以单独犯罪预备认定的合理性，并介绍、分析大陆法系有代表性的德国处罚教唆未遂的立法与理论现状，并结合与我国立法规定的比较分析，进一步说明将教唆未遂的处罚是我国处罚预备犯的体现之一。最后探讨教唆未遂处罚的情形认定，并结合德国现有理论的教唆未遂成立标准，重点介绍成立教唆未遂的客观要件与主观要件的问题。
[Abstract]:The study on the penalty of attempted abettor is not a simple combination of the theory of abettor and attempted crime, and then discusses the punishment of the form of attempted abettor. In the case of attempted abetment, the punishment basis of abettor's behavior should be examined from the instigator's behavior itself, and its nature is the manifestation of the individual form of crime preparation. Therefore, it is unreasonable to discuss the nature of abettor or the establishment system of accomplice. Taking into account the high risk that attempted instigations may pose to the interests of criminal law protection laws, and the need to rationalize the new relationship between the criminal theory system and criminal policy in the light of the development of modern criminal policy theories and the discussion of the basis for their punishment, In order to better explain the instigator attempted punishment is reasonable. With reference to the criminal legislation and theoretical research in Germany, the representative of the continental law system, we can further clarify the penalty scope of attempted instigation as stipulated in Article 29, paragraph 2, of the Criminal Law of our country. And further demonstrates that under the current legislative system of our country, the penalty of attempted abetment is regarded as the rationality of punishing individual crime preparatory offenders. The thesis is divided into three parts as follows: the first part of the article defines the concept of "attempted abettor" reasonably and clarifies the different situations of attempted abettor. On the basis of this, the article 29 (2) of the criminal law about attempted abetment is analyzed comprehensively, and the main problems discussed in this paper are clarified. This part mainly points out in three aspects: the article 29 (2) of the Criminal Law is not aimed at the typical joint crime, the "abetting act" in the attempt of abetting should be defined as the nature of the act; Article 29, paragraph 2, states that the question that may lead to an imbalance in punishment is a matter of legislation and not a reason to deny the penalty of attempted abetment. The second part of the article mainly introduces the content of article 29, paragraph 2 of the criminal law and different opinions on the punishment of attempted abettor, and makes a comprehensive analysis, from the theory of the independence of the abettor, the theory of duality. From the perspective of attribute theory and single principal offender system. Based on the comments above, it is clear that the instigator attempt should not belong to the category of accomplice, and it is not appropriate to discuss the instigating attempted punishment from the nature of the abettor. However, the penalty of attempted abettor is not contrary to the accessory nature of abettor, and it is believed that the true meaning of "abettor" in Article 29 (2) of Criminal Law is abettor. On this basis, we adhere to the position of attempted instigating punishment, and from the view that the penalty of attempted abettor reflects the criminal policy of social risk in modern society, It is also an important embodiment of the new relationship between modern criminal law system and criminal policy. In the third part, the author further demonstrates the rationality of trying to commit a crime alone, and introduces the legislative and theoretical situation of the representative German penalty attempt in continental law system. Combined with the comparative analysis of the legislative provisions of our country, it is further explained that the punishment of attempted abettor is one of the embodiment of the punishment of the preparatory offender in our country. Finally, this paper discusses the case determination of attempted abettor punishment, and introduces the objective and subjective elements of attempted instigation in combination with the existing German theory of the criteria for the establishment of attempted instigation.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.1
本文编号：2279701
[Abstract]:The study on the penalty of attempted abettor is not a simple combination of the theory of abettor and attempted crime, and then discusses the punishment of the form of attempted abettor. In the case of attempted abetment, the punishment basis of abettor's behavior should be examined from the instigator's behavior itself, and its nature is the manifestation of the individual form of crime preparation. Therefore, it is unreasonable to discuss the nature of abettor or the establishment system of accomplice. Taking into account the high risk that attempted instigations may pose to the interests of criminal law protection laws, and the need to rationalize the new relationship between the criminal theory system and criminal policy in the light of the development of modern criminal policy theories and the discussion of the basis for their punishment, In order to better explain the instigator attempted punishment is reasonable. With reference to the criminal legislation and theoretical research in Germany, the representative of the continental law system, we can further clarify the penalty scope of attempted instigation as stipulated in Article 29, paragraph 2, of the Criminal Law of our country. And further demonstrates that under the current legislative system of our country, the penalty of attempted abetment is regarded as the rationality of punishing individual crime preparatory offenders. The thesis is divided into three parts as follows: the first part of the article defines the concept of "attempted abettor" reasonably and clarifies the different situations of attempted abettor. On the basis of this, the article 29 (2) of the criminal law about attempted abetment is analyzed comprehensively, and the main problems discussed in this paper are clarified. This part mainly points out in three aspects: the article 29 (2) of the Criminal Law is not aimed at the typical joint crime, the "abetting act" in the attempt of abetting should be defined as the nature of the act; Article 29, paragraph 2, states that the question that may lead to an imbalance in punishment is a matter of legislation and not a reason to deny the penalty of attempted abetment. The second part of the article mainly introduces the content of article 29, paragraph 2 of the criminal law and different opinions on the punishment of attempted abettor, and makes a comprehensive analysis, from the theory of the independence of the abettor, the theory of duality. From the perspective of attribute theory and single principal offender system. Based on the comments above, it is clear that the instigator attempt should not belong to the category of accomplice, and it is not appropriate to discuss the instigating attempted punishment from the nature of the abettor. However, the penalty of attempted abettor is not contrary to the accessory nature of abettor, and it is believed that the true meaning of "abettor" in Article 29 (2) of Criminal Law is abettor. On this basis, we adhere to the position of attempted instigating punishment, and from the view that the penalty of attempted abettor reflects the criminal policy of social risk in modern society, It is also an important embodiment of the new relationship between modern criminal law system and criminal policy. In the third part, the author further demonstrates the rationality of trying to commit a crime alone, and introduces the legislative and theoretical situation of the representative German penalty attempt in continental law system. Combined with the comparative analysis of the legislative provisions of our country, it is further explained that the punishment of attempted abettor is one of the embodiment of the punishment of the preparatory offender in our country. Finally, this paper discusses the case determination of attempted abettor punishment, and introduces the objective and subjective elements of attempted instigation in combination with the existing German theory of the criteria for the establishment of attempted instigation.
【学位授予单位】：华东政法大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.1
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