我国异种自由刑并罚规则重构路径探析

On the Reconstruction of the Combined Punishment Rules in Punishment against Freedom in China

我国《刑法》第六十九条第二款确定了异种自由刑数罪并罚的执行规则,兼采吸收和并科原则,为司法实践提供了法律依据。但学术界对该法条的适用争议却并未停息。吸收说、分别说、折算说、折中说众说纷纭、各有优劣,综合我国司法实践现状及对罪责刑相适应原则的贯彻,对于异种自由刑的并罚可采取限制加重原则下的折算说来解决有期徒刑与拘役的并罚问题,有期徒刑与管制、拘役与管制的并罚可采取先将管制折抵为罚金,再依并科原则下的分别执行说进行并罚。。

The second paragraph of Article 69 of the Criminal Law of our country establishes the enforcement rules of the mixed punishment of different kinds of free punishment for several crimes,and adopts the principle of absorbing and combining punishment,which provides the legal basis for judicial practice.However,in academia,the application of the law has not stopped controversy.Absorption theory,respectively,commutation theory,compromise theory each has its own advantages and disadvantages.According to the current situation of judicial practice in our country and the implementation of the principle of adaptation of crime,responsibility and punishment,the punishment of freedom of different species can be concurrently punished.The following principles may be adopted:adoption of commutation under the principle of aggravating restrictions in order to solve the problem of the combination of imprisonment and criminal detention;The combination of imprisonment and public surveillance and criminal detention and control may be preceded by commutation of control to a fine Then according to the principle of separate execution and punishment.