我国刑法理论及司法实践对教唆未遂、刑法第29条第2款的讨论与研究由来已久且争议不断，从单一制入手解释的方案因我国并非单一制国家且单一制具有破坏构成要件定型意义等缺陷而不足为取，以共犯独立性说、二重性说等为共犯基础原理的解释方案，则可能造成处罚范围划定不当、立场左支右绌难以自圆其说的问题。从实然及应然角度，区分制、共犯从属性说、混合惹起说是支持教唆未遂做出准确认定、妥当处罚应当采取的共犯基本理论，其中，共犯从属性为核心学说，应从更为本源的共犯处罚根据的角度探讨共犯从属性，重新考虑共犯从属性的核心要义，承认共犯在预备阶段即有从属性。该观点与我国预备犯处罚原则、共犯及正犯的行为构造、共犯及正犯与法益的“亲疏远近”关系更加契合，共犯从属性要求共犯不法无法多于正犯划定的不法，因此，应避免在严重犯罪中忽视被教唆者的处罚或者过重处罚教唆者等现象。本文认为，教唆未遂指且仅指对教唆犯处以犯罪未遂之刑的情形，此为刑法第29条第2款所规定，因此，“被教唆的人没有犯被教唆的罪”应解释为“被教唆者着手实行犯罪但没有达到既遂状态”。但是，被教唆的人着手实施犯罪仅是教唆犯被以教唆未遂之刑处罚的必要条件，混合惹起说要求检验被教唆的人所引起的法益侵害结果对于教唆犯而言是否是值得保护的，避免将不可罚行为纳入处罚范围。司法实践中将失败的教唆、无效果之教唆、无因果关系的教唆作为“教唆未遂”加以处罚，是共犯独立性说的立场，这种将教唆行为等同于实行行为的做法过于重视犯意流露，造成了教唆犯量刑畸重、教唆犯与被教唆的人量刑不均衡、无视构成要件定型要求等缺点。但应仔细辨析司法实践因何青睐共犯独立性说的缘由，进一步消弭司法实践和刑法理论正确路径之间的鸿沟。司法实践中对于部分案件表达“应罚”的观点并非毫无道理，是积极刑法观的具体应用。应当承认教唆行为具有预备性质，在教唆者实施极其严重犯罪的教唆时以预备犯的规定处罚是合适的。在教唆未遂的量刑中还应特别考虑到教唆本身的特殊危险，从不法与责任两方面考虑使量刑均衡。

The discussion and Research on attempted instigation and paragraph 2 of Article 29 of the criminal law in China's criminal law theory and judicial practice have been long-standing and controversial. The scheme of interpretation from the unitary system is insufficient because China is not a unitary country and the unitary system has the defects of undermining the stereotyped significance of constituent elements. The interpretation scheme based on the basic principles of accomplice, such as the theory of accomplice independence and the theory of duality, may lead to the improper delimitation of the scope of punishment It is difficult to justify its position. From the perspective of reality and ought to be, the distinction system, the theory of accessory attribute of accomplice and the theory of mixed provocation are the basic theories of accomplice that should be adopted to support the accurate identification and appropriate punishment of attempted instigation. Among them, the accessory attribute of accomplice is the core theory. We should explore the accessory attribute of accomplice from the perspective of more original accomplice punishment basis, reconsider the core meaning of accessory attribute of accomplice, and recognize that accomplice has accessory attribute in the preparatory stage. This view is more consistent with the punishment principle of preparatory offender, the behavior structure of accomplice and principal offender, and the "close and distant" relationship between accomplice and principal offender and legal interests. The subordination of accomplice requires that the accomplice's lawlessness cannot be more than the lawlessness defined by the principal offender. Therefore, we should avoid ignoring the punishment of the instigator or excessively punishing the instigator in serious crimes.This paper holds that attempted instigation refers to and only refers to the punishment of attempted crime imposed on the instigator, which is stipulated in paragraph 2 of Article 29 of the criminal law. Therefore, "the instigated person does not commit the instigated crime" should be interpreted as "the instigated person starts to commit the crime but does not reach the accomplished state". However, the instigator's starting to commit a crime is only a necessary condition for the instigator to be punished with the punishment of attempted instigation. The mixed provocation theory requires to test whether the legal interest infringement result caused by the instigator is worth protecting for the instigator and avoid bringing the unpunished behavior into the scope of punishment. In judicial practice, the failed instigation, ineffective instigation and instigation without causality are punished as "attempted instigation", which is the position of the theory of accomplice independence. This practice of equating the instigation behavior with the implementation behavior pays too much attention to the disclosure of criminal intention, resulting in the excessive sentencing of the instigator, the unbalanced sentencing of the instigator and the instigated person, and ignoring the stereotyped requirements of constituent elements. However, we should carefully analyze the reasons why judicial practice favors the theory of accomplice independence, and further eliminate the gap between judicial practice and the correct path of criminal law theory. In judicial practice, it is not unreasonable to express the view of "punishment" for some cases, which is in the specific application of the positive view of criminal law. It should be recognized that the instigation has the nature of preparation, and it is appropriate to punish the instigator with the provisions of the preparatory offender when the instigator commits the instigation of an extremely serious crime. In the sentencing of attempted instigation, we should also pay special attention to the special danger of instigation itself, and balance the sentencing from the two aspects of lawlessness and responsibility.