教唆未遂理论分析-高校教师专业论文.docxVIP

PAGE PAGE 3 犯罪范畴，但教唆犯属于共犯范畴并不等同于教唆犯必须在共犯基础之上 成立。（3）我国《刑法》第 29 条第 1 款不是教唆犯成立条件的规定，而 是教唆犯成立共同犯罪时如何量刑的规定。（4）教唆他人犯罪成立共同 犯罪，既包括教唆人与被教唆人之间，也包括多个教唆人之间。（5）我 国《刑法》第 29 条第 2 款不是教唆犯未遂可罚性的体现，教唆未成的处 罚根据在于教唆犯的独立性与立法选择的结果。（6）如果被教唆人没有 犯被教唆的罪，对于教唆犯，可以按照其所教唆的罪的法定刑从轻或者减 轻处罚。 关键词：教唆犯 共犯独立性 共犯教唆犯 教唆未遂 Abstracts Instigator commits a crime as well as makes an offender. Instigator is the initiator of the criminal idea and also the disseminator of crime, has serious jeopardize. Therefore, researching the theory of instigator has great theoretic and practical meaning in our criminal law. Researching the theory of instigator is beneficial to cognize the criminal mechanism of instigator, to offer academic support for striking instigating crime, so as to punish and defend crime effectively. The text is about thirty point five thousands, is divided into four parts. The first part: the researching actuality of instigator theory. This part includes the review of instigator theory evolution of our country, the presentation of other countries’ instigator theory and the outstanding problems of our researching in instigator theory at present. The phenomenon of instigator began in slavery society. The legislation of instigator began in feudal society. Instigator in latter-day criminal law had ceaseless develop. In archaic criminal law of foreign countries, instigator made of complicity with pure psychic aid and behavioral aid. In latter-day criminal law, instigator had differences based on the continent legal system, the common legal system and socialism countries. The outstanding problems of our researching in instigator theory at present contain the character of instigator, the component of instigator, the uncommitted instigating, and so on. The second part: the paraphrase of the character of instigator. This part introduces seven theories, such as the instigator’s subordinate character of the complicity, the instigator’s unattached character of the complicity, the instigator’s duplicate characte