黑社会性质组织犯罪的重复评价问题研究

The Repeat Evaluation Research of the Gangland Organization Crimes

若可以把刑法上的禁止重复评价原则理解为"对同一事实的同一属性或侧面进行定性处罚上的二次或二次以上的法律评价"的话,则黑社会性质组织犯罪在定性和处罚上均存在较严重的数罪并罚型、酌定从重型和实质累加型重复评价问题。这不仅表现在行为人实施的所有具体犯罪都需要与组织、领导、参加黑社会性质组织罪并罚,而且表现为在数罪并罚等处罚基础上还要对其酌定从重处罚,以及在前述处罚基础上还要适用诸多贯彻从重处罚精神的处罚制度。如此等等之重复评价问题,既源于重刑主义观念下对刑事政策的片面理解和适用,也缘于立法技术问题造就黑社会性质组织犯罪相关规定的冲突。有效解决以上问题之对策,在立法上需基于罪责刑相适应原则对刑法相关规定进行系统性改造,在司法上要避免做出罪责刑不相适应的定罪处罚。

If the principle of times legal evaluation on nature or Double Jeopardy punishment to th of criminal law can be understood as ＂giving two or more e same property or portfolio of one fact＂, then the Gangland Organization Crimes exist the problem of severe repeated evaluation of combined punishment-type, discretionary from heavy-type and substantial accumulation-type both in conviction and punishment, which means that not only the performance of all the specific crimes carried out by the individuals are combinedly punished with the organizing, leading, or participating in the Gangland Organization Crimes, and the performance should be dis- cretionarily punished severely on the basis of the combined punishment, as well as on the basis of the foregoing punishment applied with a lot of penalty systems which implement the spirit of severe punishment. All the prob- lems of repeated evaluation are not only originated from the doctrine of severe punishment which lead to the one-sided understanding and using of the criminal policy, but also the problem of legislative technique which lead to the conflict of the related provisions of Gangland organization crimes. To solve these problems effective- ly, the legislature ishment including judgment which is shall modify the criminal law provisions systematically based on the principle of suiting pun- the cancellation of the Gangland Organization Crimes, and the judge shall avoid making a not consistent with the principle of suiting punishment to crime.