教唆犯规定、适用及立场之考量

关于未遂教唆问题,共犯独立性者与共犯从属性者的立场不同,即使在共犯从属性说者内部结论也未必一致;关于独立教唆犯的可罚性问题,基本上是一个立法规定的问题;关于教唆犯与间接正犯之间的错误问题,各国通说主张按教唆犯处理;关于教唆犯所体现的基本立场问题,主要取决于现行法的规定,但也并不排除学界有截然相反的立场。从解释论上讲,我国采用的是共犯从属性立场;从立法论上讲,我国应采用共犯从属性说及限制从属形式。

Research on Abettor's Stipulation, Application and Standpoint

Concerning abortive abettors,there's a different standpoint between the theory of "independent joint criminal" and "subordinate joint criminal".Even inside the approvers of one theory,it is hard to reach an exclusive conclusion.The punishment issue of independent abettors is an issue in legislation.The argument between abettors and indirect prime criminal is usually treated as abettors according to the prevailing theory in many countries.The basic standpoint of abettor is depend on stipulations by present laws,but it is not to say that we should exclude any other different opinions in this field.On interpretation thesis,our country takes the standpoint of "subordinate joint criminal" theory.But the author of this essay suggests that we should take the theory of "subordinate joint criminal" as well as restrict the forms of subordinate on legislation thesis.