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牵连犯理论是我国刑法理论和刑事司法实践中的重要课题之一,虽然我国刑法中没有明确规定牵连犯这一概念,但是在刑法分则中却有许多条文对实践中存在的具体牵连关系的数个犯罪如何处罚做出了规定。虽说如此,但是在对牵连犯的理论研究中依然存在很多争论,而其中争论最多的就是关于牵连犯处断原则的选择。目前理论界主要有以下几种意见:一是从一重处罚;二是从一重从重或加重处罚;三是数罪处罚;四是折衷论或综合论,即视不同情况来决定牵连犯的处断原则。造成这种对牵连犯处断原则理论上的争论,本文认为主要有以下原因:一是对牵连犯的罪数认定有分歧;二是对牵连犯处决时的罪数选择有分歧;三是我国刑法分则中对牵连犯的规定引起了理论上的分歧;四是对于牵连犯在整个刑法体系中与其他刑法理论的关系的认识不够充分。事实上,如果不考虑我国刑法分则中对于牵连犯的规定,同时将牵连犯理论与罪数论,并罚论和罪责型相适应原则结合起来考虑,那么对牵连犯采取数罪并罚的原则将是最合适的。
Although the concept of implicated criminals is one of the important topics in the criminal law theory and criminal justice practice in our country, although there is no explicit definition of implicated criminals in criminal law in our country, there are many provisions in criminal law that have specific implicated relations with practice How to punish a number of crimes made the provisions. Having said that, there are still many controversies in the theoretical study of implicated criminals, of which the most debated is the choice of the implicated criminality principle. At present, there are mainly theorists in the following opinions: First, the punishment from a heavy; Second, from a heavier or heavier punishment; Third, a few crimes punished; Fourth, eclecticism or comprehensive theory, depending on different circumstances to determine implicated offenders in principle. This kind of controversy caused the implicated criminals to break the doctrine of principle. The main reasons of this dissertation are as follows: First, there are differences in the number of implicated criminals; Second, there is disagreement on the number of implicated criminals involved in execution; Third, The provisions of the criminal law subjugation of a crime caused a theoretical disagreement; Fourth, the implicated in the entire criminal law system and other theories of criminal law is not fully understood. In fact, if we do not take into account the provisions of the criminal law of our country for implicated offenders, and at the same time combine the theory of implicated criminals with the theory of number of guilty and the principle of coping with punishment and guilty type, we should adopt the principle of joint punishment of several crimes Will be the most suitable.