数额犯罪部分未遂问题研究

On the Partly Attempted Crime of Amount

数额犯的本质是通过犯罪数额显现行为的社会危害程度。数额是一种特殊的犯罪情节,在我国刑法中,数额不仅包括犯罪起点数额,而且包括法定刑升格数额。由于连续犯和同种数罪在通常属于处断一罪,这就使得累计数额成为必要,但由于多次犯罪行为有的存在未遂状态,计算犯罪数额时就会出现一系列问题,同时犯罪的停止形态也成为变质疑之处,进而导致司法实践的量刑出现差异。以累积性犯罪数额为前提,综合整体既遂说和整体未遂说,可以克服各自缺点,实现量刑公正。

The nature of the crime of amount is to show the degree of harm which the conduct has done to the society by the amount.The amount of crime is a special consideration in the process of convicting.In the Criminal Law of the People＇s Republic of China,the amount of crime contains not only the crime-starting-point amount,but also the legal-punishment-upgraded amount.As the continuous crime and the several crimes of same kind are usually convicted as a crime,it is necessary to accumulate the amounts of crimes.But some of the offenses are inchoate,then there come issues such as how to calculate the amounts,and how to convict the stop form for crime（attempted or accomplished）.All these can finally lead to sentencing differences in the judicial practice.To achieve the sentencing justice,we should base on the cumulative amounts of offenses.We should also consider both ＂the overall accomplished view＂ and ＂the overall attempted view＂,and then overcome their own shortcomings to establish a scientific sentencing system.