| In countries adopting the Principal and Accomplice Offender System, the Theory of Subservience of Instigator has legal foundations and becomes the dominant theory. However, because the Chinese Criminal Law adopts a Unitary Principal Offender System, such theory has no legal foundations in China. But some scholars make interpretations to Article 29, Paragraph 2 of Chinese Criminal Law according to this theory, and deny the assertion that this paragraph focuses on the penalties of individual instigators. One of the most well-known opinion is to explain “if the instigated person has not committed the instigated crime” as the instigated person has got down to commit the crime but not accomplished. Another opinion is to explain it as the instigated person has no capacity of responsibility and does not commit the instigated crime, so the instigator should be deemed as unaccomplished indirect principal offender with the act of instigation. Both of the two interpretations are unjustified. “If the instigated person has not committed the instigated crime” should be explained as the instigated person has not committed crimes in accordance with the intention of the instigator, which includes four cases. Firstly, the instigator has implemented the act of instigation but the instigated information (or content) has not reached the instigated person. Secondly, the instigated person refuses the instigation of the instigator. Thirdly, the instigated person accepts the instigation, but has not made preparation for the crime. And lastly, the instigated person accepts the instigation, but later, due to changing the criminal intention or misunderstanding the instigator’s intention, the instigated person commits other crime which cannot contain the instigated crime. |
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