加重构成与量刑规则的实质区分——兼与张明楷教授商榷

The Distinction between Statutory Sentencing Aggregation and Sentencing Rules

我国刑法中"量刑规则"与德国刑法中的"量刑规则的通例"并不相同。对我国法定刑升格条件分类时,若依定型性标准,会导致划分出来的量刑规则在贯彻责任主义上表现不一致。而依违法性标准,法定刑升格条件分为真正的不法加重要素与表面的不法加重要素,前者可塑成加重构成要件,后者属于单纯的量刑规则,二者具有体系上的对立排斥关系,也即前者需要贯彻责任主义,存在未遂、共犯及竞合问题,而后者不存在这些问题。财产罪的"数额(特别)巨大"应区分为累计数额与单次数额。前者属于单纯的量刑规则,后者属于加重构成要件,具有未遂形态。不过,单次盗窃数额(特别)巨大财物的未遂与单次盗窃数额较大财物的既遂,并非法条竞合,而是想象竞合关系。

When classifying upgraded conditions of statutory punishment, the primary criteria should be illegal standards, rather than type standards. If the primary criteria based on type standards, sentencing rules would be inconsistent with the doctrine of culpability. However, on the basis of illegal standards, upgraded conditions of statutory punishment can be classified into real illegal aggravating elements and superficial illegal aggravating elements. The former can be aggravating conditions, while the latter only belongs to sentencing rules. The two exclude each other, for the former must deals with the issues about the doctrine of culpability, attempted, accomplice, and. concurrence, while the latter does not refer to these issues. A huge amount theft of crime of property violation refers to both total amount and single amount. The former complies only with sentencing rules, while the latter pertains to aggravating conditions and may have the condition of uncommitted. However, a huge single amount of unaccomplished theft and a huge single amount of accomplished theft is not statutes joihder of offenses, but imaginative joinder of offenses.