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陷害教唆是指教唆者出于陷害正犯之目的而教唆他人实施犯罪,教唆者对于所教唆之罪的既遂结果持何种态度存在多种可能性。陷害教唆与未遂教唆并无本质差异,将陷害教唆归置于未遂教唆的理论框架下进行研究既经济又合理。对于陷害教唆是否可罚的问题涉及对教唆犯故意内容的理解,基于违法二元论的立场。对不以追求正犯行为既遂为目的的教唆者只须对正犯之实行行为具有认识,就应当具有可罚性。
Fraudulent abetting refers to the abettor’s incitement to commit a criminal offense for the purpose of framing a guilty plea, and there are many possibilities for the instigator’s attitude towards the outcome of the attempted abetment. There is no essential difference between coercive abetting and attempted abetment. It is both economical and reasonable to study the framing abetting under the theoretical framework of attempted abetment. The issue of whether fraudulent instigation can be punished involves understanding the intentions of abettors based on the dualistic view of illegality. An abettor who does not seek the completion of a guilty pleas only needs to have an understanding of the conduct of a guilty plea and should be punishable.