选择性罪名研究

Studies on Selective Charges

选择性罪名是"两高"对存在多个同类构成要素、或者分别表现为多种形态的数个不同类构成要素的罪状的高度概括,是司法解释的一种选择。附属法条的同一性、纯正亚犯罪构成的独立性、选择性要素的同质性、以及各选择性要素间的逻辑勾连,是选择性罪名确定的主要依据。对选择性罪名"以一罪认定"可能导致罪刑失衡,应根据具体情况,决定是否适用数罪并罚。

Selective Charges is the highly generalization of counts with several selective elements ,and also the Judicial inter-pretation choice of Supreme People’s Court and The Supreme People’s Procurator ate,for the purpose of meeting the demand of legislation and making the system of charges regular.The same of Affiliated articles,independence of sub-constitution,same quality of the selective elements and the logical relation of Paralleling,containing or absorbing among selective elements are the basis of the charges.The principle of Taking as One Crime of selective charges will lead to the imbalance between crime and punishment,so the punish rules should be determined according to the facts;in the conditions of different discontinuing form, logical relations should be distinguished and the punish rules on Inchoate crime stipulated in General Parts should be taken;in the condition of concurrence between sub-charges and other charges,punishing rules of articles concurrence should be consid-ered firstly,and combined punishment should be taken if the sub-charges and other charges concurred.