论文部分内容阅读
目前刑法理论界对连续犯作一罪处断的理论根据有:避免以实质竞合的方式来处理连续犯;具有一定的诉讼价值,符合刑法经济性原则;防止对犯罪人量刑畸重;是主观主义刑法思想的产物等观点。笔者认为上述观点都不能作为连续犯作一罪处断的理论根据。连续犯作一罪处断的理论根据在于:连续犯的主观恶性明显低于行为人实施数个独立的同种犯罪的情形。其造成的客观危害的大小,也比行为人实施数个独立的同种犯罪的情形低。因此,对连续犯不能数罪并罚。另外,连续犯是实质的数罪,对连续犯不能只按照其中一个犯罪进行处断。对连续犯只能处断为一罪,再考虑其他犯罪事实、犯罪的性质、情节和对社会危害的大小,依据刑法的相关规定进行相应的处罚。
At present, the theoretic bases of criminal law circles on the continuous offense of punishing one crime are as follows: avoiding the continuous contest of crime in the way of substantial competition; having certain value of litigation, meeting the economic principle of criminal law; The idea of subjectivism criminal law product point of view. The author believes that these views can not be used as a continuous basis to make a criminal summary of the theoretical basis. The theoretical basis for the continuous crime of a single offense consists in the fact that the subjective viciousness of consecutive crimes is significantly lower than that of the perpetrator in the implementation of several independent allied crimes. The magnitude of the objective harm caused by it is also lower than that of the perpetrator in the implementation of several independent offenses of the same kind. Therefore, continuous crimes can not count the number of punishments. In addition, the continuous crime is a substantive crime, the continuous crime can not be punished according to one of the crimes. For continuous offenders, only punishable offenses should be punished. After considering other criminal facts, the nature and circumstances of the crimes and the magnitude of harm to the society, corresponding punishments should be made in accordance with the relevant provisions of the Criminal Law.