程序法视野中的罪数论——基于非典型罪数形态的实现研究

Theory of crime number in the field of procedure law——On the basis of the study of the realization of the form of atypical crime number

罪数存在多种形态,典型一罪与典型数罪均不存在整体评价与分开评价之分,而非典型罪数形态则存在整体评价与分开评价之分,只有整体评价才能实现罪数目的。如何保障构成非典型罪数形态的所有犯罪事实能够一并处理从而进行整体评价,以及如何防止司法机关将本应整体评价的犯罪事实进行分开评价,这是决定罪数目的能否实现的关键问题,而这一问题与程序法上犯罪事实处理的原理与基本方式密切相关。因此,罪数论不仅是一个实体法问题,而且是一个程序法问题。诉审同一与一事不再理两项原则构成了程序法上犯罪事实处理的原理与基本方式,要实现罪数目的,罪数规定就必须适应该原理与基本方式。为此,在罪数立法时应该尽量避免将不属于同一自然事件的数个犯罪事实规定为一罪。

Crime number exists various forms.As for typical one crime or typical several crimes,there are no distinction between overall evaluation and separate evaluation.By contrast,the form of atypical crime number exists such distinction and its target can be realized only by overall evaluation.Otherwise,whether its target can be realized depends on how to ensure that all the criminal facts contained in the atypical crime number form can be handled together so as to make overall evaluation and how to prevent the judiciary authorities from intentionally evaluating the facts separately which should be evaluated wholly.And this issue is closely related to the principles and basic modes of dealing with criminal facts in procedural law.Following that,theory of crime number is not only a problem of substantive law but also a problem of procedural law.The principles and basic modes of handling criminal facts in procedural law are composed of the principles of the unity of litigation and trial and non bis in idem.In order to achieve the target of the crime number,the regulations involved must adjust to its principles and modes.Hence,in the legislation of crime number,the situation should be avoided as far as possible is that several criminal facts which do not belong to the same natural event are punished in one crime.