法条竞合的特别关系新论——兼论刑法分则“本法另有规定的,依照规定”

Alternative Interpretation of Special Relationship of Article Convergence ——Discussion of Article that Please refer to this provision unless otherwise stipulated in Specific Provisions of Criminal Law

法条竞合的特别关系是指一行为触犯的数法条的外延存在完全包容关系(从属关系),数法条的外延仅存在部分包容关系(交叉关系)的情况并非法条竞合,而是想象竞合犯。在此基础上,刑法分则规定的"本法另有规定的,依照规定"是"特别法优于普通法"原则的重申或强调,这样既符合立法者在普通法条之外另设立特别法条的本意,又能避免将法条的部分包容关系视为法条竞合所造成的罪刑不均衡的情况。

The special relationship of article convergence refers to such a fact that when one commits a crime, his or her behavior could be accountable by several provisions of different laws at the same time, and those provisions are of completely inclusive relation(subordinate relationship). However, this does not include the situations when the provisions are of partially convergence. Thus this paper argues that the article regulated by the Specific Provisions of Criminal Law that Please conform to this provision unless otherwise stipulated means to reiterate or stress the principle that a special law is superior to a common law. This fulfills the lawmakers' intention to erect a special law in addition to the common law, and prevents such unfairness from happening when articles of law of partial inclusion are misunderstood as the coincidence of articles.