对想象竞合犯的法律本质与处断原则的反思

Reflection on the Nature in Law and the Principle of Punishment of Imaginative Joinder Offenses

通说认为想象竞合犯的法律本质是一罪，其处断原则是从一重处断，但这一理论面临实践的困境。根据犯罪构成标准，想象竞合犯的法律本质应是数罪，应当数罪并罚，如此才能摆脱通说的困境，而且并不违反禁止重复评价原则。通说的修正理论“从一重重处断”学说，在逻辑上自相矛盾，因而亦不可取。

The general theory maintains that imaginative joinder offenses is one crime in legal nature, and should be sentenced on the basis of the most serious crime, but this theory leads to difficult position of practice. According to the standard of criminal constitution, imaginative joinder offenses are several crimes in legal nature, and should be punished combinedly for several crimes. Only by this measure can we flee from the difficult position, and this opinion doesn' t violate the principle of prohibition of double evaluations. The theory 'heavier sentencing on the basis of the most serious crime'is contradictory, so it also should be deserted.