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教唆未成年人犯罪,分为两种情况:一是教唆对其行为具有刑事责任能力的未成年人实施犯罪,这种情形下的教唆者是教唆犯:二是教唆对其行为不具有刑事责任能力的未成年人实施犯罪,这种情形下,被教唆者只是充当了教唆者的犯罪工具,教唆者正是利用这种工具实施了充足构成要件的行为,可将其定性为间接正犯。据此应当对刑法第二十九条相关规定作限制解释,仅适用于第一种情形;对于第二种情形于法无据的现状,应由司法解释来解决。同时我们也希望间接正犯理论能纳入立法者的视野,使未来的刑法典更加完善。
Instigating juvenile delinquency is divided into two situations: one is to incite a minor who is criminally responsible for his or her behavior to commit a criminal act. In this case, the instigator is an abettor: the second is to incite him or her to have no criminal responsibility for his or her conduct Capable juvenile commits a crime, in which case the instigator acts merely as a criminal tool for the abettor, and it is precisely the abettor who has exercised sufficient constitutional requirements with such a tool to characterize it as an indirect principal. Accordingly, the interpretation of the relevant provisions of Article 29 of the Criminal Law should be limited and applicable only to the first case; for the second case, the legal situation should be solved by judicial interpretation. At the same time, we also hope that indirect criminal theory can be incorporated into the legislator’s vision so as to perfect the criminal code in the future.