一罪与数罪的区分维度:累进犯模型之提倡

The Distinguishing Dimension between One Crime and Several Crimes:Promotion of Progressive Crime Model

我国目前在一罪与数罪上的争论不休,很大一部分原因在于没有将一罪与数罪的判断统一于同一维度中来考虑。为了确定一罪与数罪的区分维度,宜在同类客体和一般客体之间设置"同质客体"层级,并可以此为基础构建起累进犯模型。具体而言,累进犯模型是对目前的一罪体系进行统一维度的类型化,即以同质客体为基础,分别将行为、罪质、罪量作为累进对象和考察要素,设置三种累进类型,即行为累进犯、罪质累进犯、罪量累进犯。其中,行为累进犯包括同质客体的牵连犯、连续犯、吸收犯和同质客体的想象竞合犯,罪质累进犯包括结果加重犯和转化犯,罪量累进犯包括继续犯和徐行犯。具体的罪数判断原则是,符合累进犯模型的复杂形态行为可以评价为一罪,而不符合该模型的异质客体的想象竞合犯和异质客体的牵连犯则应判断为数罪。

At present, there is an endless debate on one crime and several crimes in our country. A large part of the reason lies that the judgment of one crime and several crimes is not enlisted in the same dimension. In order to determine the distinguishing dimension between one crime and several crimes, we should set up the level of "homogeneous object" between the same kind of object and the general object, and on this basis, we can build the model of progressive offense. Specifically, the progressive crime model is a unified dimension type of the current one crime system, that is, based on the homogeneous object, the behavior, the nature and the quantity of crime are regarded as the progressive objects and the investigation elements respectively, and three progressive types are set up, namely, the behavior progressive offense, the qualitative progressive offense and the quantitative progressive offense. Among them, the behavior progressive crime includes implicated crime, continuous crime, absorption crime and imaginative concurrence crime of homogeneous object;the progressive crime of criminal nature includes the result aggravated crime and the transformation crime;the crime quantity progressive crime includes the continuous crime and the gradual offence. The specific principle of judging the number of crimes is that the complex behavior conforming to the progressive crime model can be evaluated as one crime, while the imaginary joiner of offense of heterogeneous objects and the implicated crime of heterogeneous objects should be judged as several crimes.