教唆未遂的认定问题研究
发布时间：2018-12-12 18:05
【摘要】：教唆犯相关问题是刑法理论中的难点,有关教唆犯的理论争议也是无处不在,以至于有学者将其称之为刑法中的“幽暗地带”、“绝望之章”。在教唆犯理论的诸多争议中,有关教唆未遂的争议尤为突出。争议的焦点主要在于对教唆犯性质的不同认识以及对我国《刑法》第29条第2款之规定的不同理解上。鉴于此,笔者尝试以共同犯罪理论和犯罪未完成形态理论为依据,对教唆未遂的认定问题进行研究,以期为刑法理论界和司法实务界产生借鉴意义。教唆未遂理论是共同犯罪理论与犯罪未完成形态理论的交叉和融合,对教唆未遂的研究,不能脱离共同犯罪的整体框架,同时也要紧密结合犯罪未完成形态的相关内容。本文主要研究了与教唆未遂的认定密切相关的教唆犯的性质、教唆未遂的可罚性、教唆未遂的具体认定、我国现行立法的相关规定等问题。首先,从正犯与共犯的关系入手,在二元区分的体系下,探讨了教唆犯的性质,论证了教唆犯从属性说的合理性。然后,分析了教唆犯的可罚性与未遂犯的可罚性,在此基础上,探讨了教唆未遂的可罚性。再后,根据教唆犯的性质和教唆未遂的可罚性,结合犯罪未遂理论,梳理了教唆未遂的概念并提出了认定教唆未遂的具体标准。最后,对我国《刑法》第29条第2款之规定进行了解读,并提出了该规定存在的问题及完善建议。
[Abstract]:The related problem of abettor is a difficult point in the theory of criminal law, and the theoretical controversy about abettor is also ubiquitous, so some scholars call it the "dark zone" and "the chapter of despair" in criminal law. Among the many controversies in the theory of abettor, the controversy about attempted abettor is particularly prominent. The focus of the controversy lies in the different understanding of the nature of the abettor and the different understanding of the provisions of Article 29 (2) of the Criminal Law of China. In view of this, the author tries to study the identification of attempted abettor on the basis of the theory of joint crime and the theory of incomplete form of crime, in order to produce reference significance for the theoretical circle of criminal law and judicial practice. The theory of attempted abetment is the intersection and fusion between the theory of joint crime and the theory of incomplete form of crime. The study of attempted abetment can not be separated from the whole frame of joint crime, but also closely combined with the related contents of the form of uncompleted crime. This paper mainly studies the nature of the abettor who is closely related to the identification of the attempted abettor, the punishment of the attempted abettor, the concrete determination of the attempted abettor, and the relevant provisions of the current legislation of our country. First, starting with the relationship between principal offender and accomplice, this paper discusses the nature of abettor and proves the rationality of the theory of accessory attribute of abettor. Then, this paper analyzes the penalty of abettor and attempted offense, and discusses the penalization of attempted abettor. Then, according to the nature of the abettor and the penalty of the attempted abettor, combined with the theory of attempted crime, this paper combs the concept of the attempted abettor and puts forward the concrete standard to identify the attempted abettor. Finally, the article 29, paragraph 2, of the Criminal Law of our country is interpreted, and the problems existing in the provision and the suggestions for its perfection are put forward.
【学位授予单位】：兰州大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D924
本文编号：2375050
[Abstract]:The related problem of abettor is a difficult point in the theory of criminal law, and the theoretical controversy about abettor is also ubiquitous, so some scholars call it the "dark zone" and "the chapter of despair" in criminal law. Among the many controversies in the theory of abettor, the controversy about attempted abettor is particularly prominent. The focus of the controversy lies in the different understanding of the nature of the abettor and the different understanding of the provisions of Article 29 (2) of the Criminal Law of China. In view of this, the author tries to study the identification of attempted abettor on the basis of the theory of joint crime and the theory of incomplete form of crime, in order to produce reference significance for the theoretical circle of criminal law and judicial practice. The theory of attempted abetment is the intersection and fusion between the theory of joint crime and the theory of incomplete form of crime. The study of attempted abetment can not be separated from the whole frame of joint crime, but also closely combined with the related contents of the form of uncompleted crime. This paper mainly studies the nature of the abettor who is closely related to the identification of the attempted abettor, the punishment of the attempted abettor, the concrete determination of the attempted abettor, and the relevant provisions of the current legislation of our country. First, starting with the relationship between principal offender and accomplice, this paper discusses the nature of abettor and proves the rationality of the theory of accessory attribute of abettor. Then, this paper analyzes the penalty of abettor and attempted offense, and discusses the penalization of attempted abettor. Then, according to the nature of the abettor and the penalty of the attempted abettor, combined with the theory of attempted crime, this paper combs the concept of the attempted abettor and puts forward the concrete standard to identify the attempted abettor. Finally, the article 29, paragraph 2, of the Criminal Law of our country is interpreted, and the problems existing in the provision and the suggestions for its perfection are put forward.
【学位授予单位】：兰州大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D924
【参考文献】
相关期刊论文 前4条
1 赵秉志;魏东;;论教唆犯的未遂──兼议新刑法第29条第2款[J];法学家;1999年03期
2 肖本山;;“教唆未遂”诠释新解——关于体系性解释和目的解释方法的适用[J];法学评论;2007年05期
3 何庆仁;我国刑法中教唆犯的两种涵义[J];法学研究;2004年05期
4 郭园园;论教唆未遂与未遂教唆——以我国《刑法》第29条第2款的解读为中心[J];现代法学;2003年06期
，本文编号：2375050
本文链接：https://www.wllwen.com/falvlunwen/xingfalunwen/2375050.html
