试论法条竞合及其具体适用

On the Overlap of Criminal Law Articles and Its Specific Application

刑法中的法条竞合,是指一个犯罪行为,因法律的错杂规定,以致同时违反数个法条,但仅应适用其中一条而排斥其他条文适用的情况,法条竞合是一个刑法理论和司法实践都不可避免的重要问题。研究法条竞合,关键在厘清其本质特征的基础上解决对具体案件如何认定和处理的问题,本文就试图以此为基点对法条竞合做一些分析。

The overlap of criminal law articles in Criminal Law means due to complicated legal regulations,a criminal behaviour may break several laws while it only be suitable to one of those laws and rejects other laws.The overlap of criminal law articles is an unavoidable problem for criminal law theory and justice practice.The key to the study of it is to solve the problem of how to identify and handle specific lawsuits based on the distinguishing its substitutive characteristics.This paper attempts to analyse the overlap of criminal law articles on this basis.