包容犯新论

Rethinking Inclusive Crimes

包容犯是客观存在的法律现象,是动态的犯罪行为如何触犯相互包容的法条,而包容性法条竞合反映的是法条之间静态的包容关系,二者不可等同。包容犯确是罪数形态的一种表现形式。我国刑法中共有七个包容犯的条文,将原本独立成罪的数行为按照一罪加重处罚,不仅加重惩处力度,而且节约司法资源,这是刑法设立包容犯的价值所在。包容犯的本质是立法拟制,其目的是实现罪刑均衡和实质正义。

Inclusive crimes are new concept put forward recently, which refers to combining differrent crimes into one new crime. The article analysis the features of inclusive crime from intrisical crimes, included features and inclusive relationships; therefore deduce there are seven items in Chinese criminal law. On the basis of studining the seven items by classification, I put forward the nature of inclusive crime is law fiction, and its aim is to achive balance between crime and punishment and true justice.