想象竞合的功能及其存在根据

The Function of Conceptual Concurrence and Its Foundation

将罪数论升级为竞合论,关键在于要使罪数论的定罪量刑功能转变为竞合论的量刑功能。想象竞合是竞合论中最为重要的成员,它是一个针对自然行为犯数罪如何量刑的理论。在对想象竞合行为定罪时,犯罪构成仍是定罪的惟一标准,因此想象竞合为数罪,在判决书中,要将数罪一一列明。如果对想象竞合数罪并罚,就否定了其存在的必要性。不能对想象竞合数罪并罚的理由,就是想象竞合的存在根据。想象竞合的数罪中,不法量刑情节与特殊预防必要性的情节高度重合,数罪并罚会造成量刑中的重复评价。较轻的一罪在想象竞合的量刑中仍具有一定的发言权,即宣告刑不能低于轻罪的最低刑,同时必须考虑轻罪的附加刑。

To transform the multiple crimes doctrine into concurrence doctrine,it is essential to convert the convicting and sentencing functions of multiple crimes doctrine into the sentencing function of concurrence doctrine.As the most critical component of concurrence doctrine,conceptual concurrence should be deemed as a theory on how to sentence reasonably when the same act has been convicted of multiple crimes.The constituent elements are still the sole criterion for testing whether the same act is one or more than one crime（s）,and thus all the crimes in conceptual concurrence should be convicted in the judgment.If the consolidated punishments have been announced in conceptual concurrence,the existence of the concept of conceptual concurrence is pointless;the foundation of conceptual concurrence is the reason why the multiple convictions should not be applied.During the sentencing for multiple crimes in conceptual concurrence,the sentencing circumstances of illegality and special deterrence overlap.Consolidated punishments would probably result in the double-evaluation of those circumstances,which would go against legitimate interests of the defendants.Although the final sentence should be mainly based on the aggravated crime,the minimum punishment of the mitigating crimes remains its ＂voice＂ in the final sentence.The final sentence should not be less than the minimum punishment of the mitigating crime,and its supplementary punishments should be considered too.