认定牵连犯和吸收犯若干问题之研讨

Research on Some Issues about Confirming Implicating Crime and Assimilating Crime

牵连犯、吸收犯均是刑法理论、司法实践中难以界定的处判一罪形态概念。牵连犯应界定为行为人出于直接追求一个犯罪目的,而犯罪的方法或结果行为又必然构成其他犯罪的犯罪形态。吸收犯应是数个犯罪行为因一个被另一个所吸收而失去独立意义,仅按吸收的犯罪行为处断的犯罪形态。两类犯罪形态的区分以罪质数为准。牵连关系和吸收关系分别是准确认定牵连犯和吸收犯两类犯罪形态的核心问题。

Implicating crime and assimilating crime are concepts which are difficult to define in the theory of criminal law and justice in practice.Implicating crime should be defined as a crime form that a doer of crime pursues a criminous purpose,while the ways and the results of crime will necessarily bring on the other crime.Assimilating crime is referred to a crime form that is punished and adjudged according to the absorbed crimes,because some crimes are included into other forms and judged by one form.The number of crimes is the standard that distinguishes two kinds of crime forms.The relation of implicating and the relation of assimilating in the law are the cores to confirm two forms of crimes about implicating crime and assimilating crime.