禁止重复评价原则探析——以黑社会性质组织犯罪为例

Analysis of the Principle of Prohibition of Repeated Evaluation: Taking the Crime of Organized Crime as an Example

禁止重复评价原则最早可追溯至古罗马法,后逐渐发展为世界所公认的一项刑法原则,但我国刑法却未能明文规定该原则。以黑社会性质组织犯罪为例,该罪对"数罪并罚"和"组织、领导行为"的规定有违反禁止重复评价原则的嫌疑。事实上,对于"数罪并罚",在与禁止重复评价原则基本理念不相冲突的情况下可以作出不同的处理;而对"组织、领导行为"的相关规定及司法实践上的处理确实实质加重了组织、领导者的处罚,需谨慎对待。

The principle of prohibiting repeated evaluation can be traced back to ancient Roman law as early as possible, and gradually developed into a principle of criminal law recognized in the world, but the principle has not been explicitly stipulated in our criminal law. Taking the organized crime of underworld nature as an example, the crime has the suspicion of violating the principle of prohibiting repeated evaluation to the provisions of “punishment for several crimes” and “organization and leadership behavior”. In fact, the “combination of several crimes” can be dealt with differently when it does not conflict with the basic philosophy of the prohibition of repeated evaluation; and, in the case of “an organization”, the related regulations of leadership behavior and the handling of judicial practice really aggravate the punishment of organization and leader, which should be treated with caution.