陷害教唆与侦查圈套的可罚性探讨

陷害教唆与侦查圈套有着天然的伴生关系,但并非所有的侦查圈套都属于陷害教唆之情形。按我国教唆犯二重性的通说,陷害教唆行为应具有可罚性,但侦查圈套并不都具有可罚性。犯意诱惑型侦查圈套行为虽然有目的的正当性为支撑,但其手段的非正当性亦不能排除其可罚性;纯正的机会提供型侦查圈套因不符合教唆犯本质特征,不应受到刑罚的非难;不纯正的机会提供型侦查圈套应当作为刑法中正当化事由加以规定。

Discussions On Canning Be Punished Nature Which Frame And Instigate And Reconnoiters The Snare

Attempted instigation have relations of natural companion with police entrapment. Although the relation between general and individual, not all entrapment belong to attempted instigation. According to the theory of abettor's dual characters, attempted instigation should be punished. However, not all entrapment such as pure chance of entrapment have punishable. On the other hand, considering social appropriate theory, we should treat non-pure chance of entrapment as legitimate ground in criminal law.