机能的思考方法下的罪数论

Theory of Quantity of Crimes under the Functional Thinking Method

奉行"本来的思考方法"的传统罪数论,把罪数视为犯罪本来的数量属性。这种朴素的思考方法造成罪数论庞杂的问题域、双主线的矛盾体系和不合理的结论。移植竞合论也不能摆脱上述困境,因为二者在思考方法上是相似的。在罪数论中应提倡"机能的思考方法",以罪数论在刑法学体系中的机能为导向,限制其问题域,重新确立界分一罪和数罪的罪数标准。罪数论承担的是并罚前的过滤机能:在进入数罪并罚之前,把诸罪名之间存在重复不法评价的情形过滤出来,避免对其进行并罚。据此,只有触犯不同罪名的情形才需要判断罪数;罪数判断并非对犯罪个数进行计算,其标准应是诸罪名所评价的法益侵害之重合性;若诸罪名所评价的法益侵害存在重合,为一罪,反之则一律数罪并罚。

Traditional theory of quantity of crimes adheres to ＂the natural thinking method＂. The quantity of crimes is regarded as the original quantitative attribute of crimes. This simple thinking method is causing not only a complicated problem domain in the theory on quantity of crimes, but also a double-mainstream malformed system and an unreasonable conclusion on the quantity of crimes. Transplantation of the concurrence theory cannot help avoid the dilemma of the theory on the quantity of crimes because the two systems are similar in methodology. We should promote the ＂functional thinking method＂ and accordingly limit the scope of the problem domain with the function of the theo- ry on the quantity of Crimes in criminal law system. On this basis, it is also necessary to establish new standard on the quantity of crimes and make new distinction between one crime and several crimes. The theory on the quantity of crimes has the filtering function before the imposition of combined pun- ishment, namely to filter out the cases which are appraised repeatedly before the judgment on the number of crime is made, so as to avoid the imposition of combined punishment in these cases. Therefore the discussion of the quantity of crimes is needed not in all cases, but only in cases where different crimes are committed. The standard on the number of crimes is not the measurement unit of the number of crimes, but the embodiment of the function of the theory on the quantity of crimes, which is to evaluate whether there is an overlap of infringed legal interests between or among different crimes in a case. If there is, we see the case as that of one crime ; if not, we see the case as that of several crimes and a combined ounishment is needed.