想象竞合犯的明示机能研究

On the Ostensive Function of Imaginative Joinder of Offenses

想象竞合犯是一个行为触犯数罪名的情形,而想象竞合犯的明示机能是指法院在判决中应当将被告人行为所触犯的数罪名一一宣告,以充分、全面评价被告人行为具有的有责的不法内容,实现特殊预防与一般预防之目的。想象竞合犯中存在的法益侵害结果数量,决定了对想象竞合犯进行犯罪构成符合性的评价次数,因此,想象竞合犯在评价意义上是数罪。因为责任的减少,想象竞合犯在科刑意义上就属于一罪。想象竞合犯评价意义上数罪、科刑意义上一罪的罪数本质奠定了想象竞合犯明示机能的基础。想象竞合犯明示机能的发挥能够充分实现刑法的保护法益机能,有利于发挥刑法的行为规范指引作用,有利于法条竞合与想象竞合的区分,更是想象竞合犯轻罪封锁作用发挥的基础。

Imaginative joinder of offenses is one act that violates several offenses, and the ostensive function of imaginative joinder of offenses is that the court should entirely declare a number of offences committed by the defendant in the judgment, fully evaluate the wrong acts of the defendant, to achieve the purpose of special prevention and general prevention. The number of legal interests infringement in imaginative joinder of offenses determines the number of evaluation of crime constitution conformity. Therefore, imaginative joinder of offenses is several crimes based on evaluation. Because of liability reduction, the imaginative joinder of offenses is one crime in sentence. The key to crime number of imaginative joinder of offenses lays the foundation for the ostensive function. It can fully realize the protective function of legal interest, and play the guiding role of criminal law norms. Furthermore, it can distinguish imaginative joinder of offenses from overlapping of law articles, and is based on the misdemeanor blockade that imaginative joinder of offenses possesses.