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罪数形态问题是刑法理论上最复杂的问题之一,其理论发展制约着刑法理论以及司法实践。由于我国罪数形态理论的移植性,业已不适应刑法实践发展,犯罪构成理论也普遍遭受刑法学界、司法界的质疑,以至在理论及实践上造成了很多困惑。本文主要从罪数形态理论争辩比较激烈的想象竞合犯、连续犯以及事实数罪情况出发,分析我国刑法罪数体系存在的困惑原因,提出了按照客观存在的犯罪行为的主观罪过个数判断罪数,应按照罪数判断的标准作为罪数判断的基础,以罪数判断标准为指导,对罪数单复进行正确具体地推断,主张重新厘定想象竞合犯、连续犯以及事实数罪等。
The problem of the number of crimes is one of the most complicated problems in the theory of criminal law. Its theoretical development restricts the theory of criminal law and judicial practice. Due to the portability of the theory of the number of crimes in our country, it has become unsuitable for the development of the practice of criminal law. The theory of the constitution of crime is also generally challenged by the criminal law and judicial circles and has caused many puzzles in theory and practice. This article mainly analyzes the reasons for the confusion existing in the system of crimes of criminal law in our country from the fierce controversy of competing images of prisoners of war, continuous crimes and factual crimes in the argument of the theory of the number of crimes and the judgment of the number of subjective crimes according to the objective existence of criminal acts The number of crimes should be based on the criteria for the determination of the number of crimes as the basis for the determination of the number of crimes. Guided by the criteria for the determination of the number of crimes, correct and concrete estimates of the number of crimes should be correctly and specifically advocated to re-determine the number of co-accused, continuous and factual crimes Wait.