牵连犯数罪并罚问题研究

Reaserch on Joinder of Punishments for Plural Crimes about Implicated Offender

牵连犯是我国刑法理论中的一种罪数形态,对牵连犯的处罚原则,一直是理论界和实务部门比较关注的问题。笔者通过对牵连犯及其数罪并罚原则在国(境)外刑法中的地位,以及对牵连犯从一重处罚或数罪并罚相结合的原则在我国刑法理论界的争论和当前立法与司法中的矛盾的分析,认为在我国应当确立统一的数罪并罚的牵连犯处罚原则。同时,笔者认为,为了对行为人准确定罪处罚,需要划清牵连犯与连续犯、想象竞合犯和吸收犯之间的界限。

Implicated offense is a kind of crime quantity in criminal theory, and the punishment principle of implicated offender is always focused on by criminal theory and judicial practice. By analyzing the status of implicated offense and joinder of punishments for plural crimes in foreign criminal laws, and by discussing the contradiction on principle of combination of “choosing felony and giving severe punishment” and “joinder of punishments for plural crimes”, the writer suggests that, based on actual distinguishing of the implicated offense, in terms of the continual offense, the imaginative overlapping of offenses and the absorbed offense, we should found a uniform principle for the joinder of punishments for plural crimes about implicated offense.