“被教唆的人没有犯被教唆的罪”之解释
刘明祥“被教唆的人没有犯被教唆的罪”之解释
On“ If the Instigated Person Hasnot Committed the Instigated Crime”
期刊名称：《法学研究》
期刊年份：
作者：刘明祥
单位：中国人民大学刑事法律科学研究中心
中文关键词：教唆犯;被教唆;犯罪;解释
英文关键词：instigator;the instigated;crime;interpretation
中文摘要：
我国刑法采取的是单一正犯体系，教唆犯从属性说无存在的法律基础，用此说来解释我国刑法第29条第2款中的“被教唆的人没有犯被教唆的罪”，不具有合理性。应当将其解释为被教唆的人没有按教唆犯的意思实施犯罪，具体包括四种情形：(1)教唆犯已实施教唆行为但教唆信息(或内容)还未传达到被教唆的人；(2)被教唆的人拒绝教唆犯的教唆；(3)被教唆的人接受教唆，但还未为犯罪做准备；(4)被教唆的人接受教唆，但后来改变犯意或者因误解教唆犯的意思实施了其他犯罪，并且所犯之罪不能包容被教唆的罪。
英文摘要：
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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