法条竞合的形式新论

New Views on the Forms of the Concurrence of Multiple Criminal Clauses

法条竞合的形式是一行为形式上符合的数个犯罪构成关系的类型,是数个犯罪行为的常规性及其关系的体现。刑法规定的犯罪构成反映了犯罪行为的历史实在性,具有自己的边缘域并与其他犯罪构成及其边缘域存在从属或交叉关系,从而形成特别关系和补充关系两种竞合形式。法条竞合的形式的根据可分为两种:一是形式的根据,二是本体论的根据。前者是从法条的逻辑关系来确定的,后者是从犯罪行为的社会常规性上判断的。

The concurrence of multiple criminal clauses is the type of relationship that a legal act formally consists with the constitution of several crimes, and it is the conventional embodiment of the relationships of several criminal acts. The constitution of a crime demonstrates the historical reality of the criminal behavior with its bordering domain, and it has the owner-member relationship or crossing relation with other criminal constitutions and together with its bordering range, and thereby it forms two competing forms of special relationship and supplementary relationship. The foundation of the forms of the overlap of legal articles can be divided into two types ： one is formal foundation , and the other is ontological foundation. The former is determined by the logical relationship of the laws, and the latter is judged from the social conventionality of criminal behavior.