限制加重原则之反思与并科原则之提倡

Reflective Criticism of Principle of Limitative Aggravation and Promotion of Merge Principle

限制加重原则因存在违背刑法基本原则、缺乏科学适用标准、不利于刑罚目的实现等固有缺陷而受到理论界的广泛质疑。虽然经过两次以修正案的方式对其进行“打补丁”式的修正,但是仍没有消除其在“总和刑”和“最高刑”限制上存在的逻辑悖论,甚至带来刑期适用不均衡、部分犯罪被虚化、“犯罪有奖”等问题。基于并科原则在体现量刑公平正义、实现刑罚目的和发挥刑罚功能等方面的合理性,应当在立法上以并科原则取代限制加重原则,以便从根本上解决数罪并罚制度的并罚原则问题。至于并科原则可能带来“刑期过长”等问题,可通过刑罚执行中减刑、假释等制度的适用及其规则的调整予以消解。

The principle of limitative aggravation has been widely questioned in theory owing to its inherent defects such as violation of the basic principles of criminal law,lack of scientific applicable standards,and negative effect on achievement of the objects of criminal law.Two amendments is made for“patching”,however,the logical paradoxes in the limit of“total penalty”and“maximum penalty”are still unsolved,and on the other hand,the dilemmas of new and old legal application such as imbalance in the application of the sentence,blurring of some crimes and“criminal reward”are created.Based on the rationality of the merge principle in demonstrating fair and justice in sentence as well as in achieving objects and function of the criminal law,the principle of limitative aggravation shall be replaced legislatively with the merge principle in order to solve fundamentally problems of combined punishment.Although the merge principle may exist problems such as“long sentences”,they could be adjusted to resolve by means of penalty execution system and its regulations such as commutation and parole.