| If we insist on the rule of law, it should be admitted that Chinese Criminal Law has adopted the Principal and Accomplice Offender System rather than an Unitary Principal Offender System when systematically considering the regulations of accomplice offenders in its General Provisions and the fiction of principal offenders in its Sub Provisions. Therefore, the Theory of Subservience of Accomplice Offender should be affirmed, i. e., if the instigated person hasn't got down to commit the instigated crime, there is no attempted instigation. As to Article 29, Paragraph 2, it should only be explained as the instigated person has got down to commit the crime but not accomplished. Such interpretation helps to maintain the subservience of accomplice offender, adheres to the criminal objectivism, and will not indulge crime.If the instigated person only has done preparatory behavior, the theory of Preparatory Crime and Article 22, Paragraph 2 of Chinese Criminal Law should be applied. This case has nothing to do with the attempted instigation, so there is no need to apply Article 29, Paragraph 2, let alone the application of Article 23. As to cases that the instigated information hasn't reached the instigated person, the instigated person refuses the instigation, or the instigated person accepts the instigation but has not made any preparation for the crime, the danger of the acts of instigation to legal interests only stays in the mind of the instigator, which is not the object of criminal punishment. The opinion of explaining this kind of instigation as the attempted instigation misinterprets the concept of attempted instigation and Article 29, Paragraph 2, doesn't consider about the regulations of Chinese Criminal Law systematically, and finally takes the risk of falling into the criminal subjectivism, which is not an advisable explanatory approach. |
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