论我国想象竞合的规则及其限制

On “the Heavier Crime and Punishment” of Imaginative Joinder

存在论意义上的事实行为与"刑法上有意义的行为"之间的不一致,使得受制于禁止重复评价和充分评价而"从一重处断"的想象竞合在拟制规则上涉及罪与刑两个方面。其中,罪的拟制是取舍罪名的规则,刑的拟制包含着刑罚裁量的规则。在我国,"从一重处断"规则是刑法的基本立场,"从一轻"处断与数罪并罚是刑法的重要立场,后者意味着我国刑法在想象竞合规则上有重大突破,因此,区分性立场才是我国刑法的准确立场。完全置身于域外刑法语境来解决我国想象竞合问题的论调与做法,会陷入"以偏概全"的困境。立足于我国想象竞合的区分性立场并最大化维持想象竞合的传统规则,才能妥当处理"重罪"与"轻罪"难以判定时的规则适用问题和刑罚拟制中加减刑罚事由如何准确适用问题。

Owning to the inconsistency between a factual act and illegal conducts, the connotation of ＂the heavier crime and punishment＂ about imaginative joinder involves double legal fictions of charge and punish- ment, which is affected by principles of prohibiting repeatable evaluation and adequate evaluation. The legal fiction of a charge is a process of selecting charges. Meanwhile, the legal fiction of punishments contains sen- tencing rules. However, it is only the fundamental position that ＂the heavier crime and punishment＂ is adap- ted to imaginative joinder of offense. The rules of ＂the lighter crime and punishment＂ and combined punish- ment for several crimes are adopted as well, which means traditional rules have been broken in our country. So it is the distinguished position that is an accurate position in China. Dealing with the problems of imaginative joinder in the perspective of foreign codes, actors have been getting into troubles. Only based on our local dis- tinguished position, the double fictions of charge and punishment would be solved properly when the distinc- tions of crimes are subtle. Similarly, only based on our local distinguished position, how to apply special sen- tencing elements would be solved effectively.