附加刑数罪并罚的实务困境与司法消解

Practical Dilemma and Judicial Resolution of Concurrent Punishment for Several Crimes of Accessory Punishment

附加刑数罪并罚存在合并执行理解困难、财产刑与罚金刑并罚方式混乱、财产刑漏罪与新罪时并罚必要性不明的实务困境,带来了刑事人权的破坏、司法权威的毁损以及执行不力的增加。在兼顾罪责刑相适应与刑罚人道主义的原则以及兼顾刑事法治权威与灵活高效原则下,应当明确合并执行并非仅指并科方式,在附加刑种类性质完全没有联系时指的是并科方式,在种类不同、性质相同时可以采取吸收方式,在种类相同时可以采取并科方式。灵活高效地处理附加刑的数罪并罚,有利于保护被告人及被害方的隐性人权。

There are practical dilemma in the concurrent punishment for several crimes of accessory punishment,such as difficulty in understanding the combined execution,confusion in the way of combined punishment of financial penalty and pecuniary penalty,and unclear necessity of combined punishment of omission crime and new crime,which has brought about the destruction of criminal human rights,the destruction of judicial authority and the increase of ineffective execution.Under the principle of taking into account the adaptation of crime,responsibility and punishment and the humanitarianism of punishment,as well as the authority of criminal rule of law and the principle of flexibility and efficiency,it should be clear that the combined execution does not only refer to the way of concurrent punishment.When there is no connection between the types and nature of accessory punishment,it refers to the way of concurrent punishment.When the types are different and the nature is the same,the way of absorption can be adopted,and when the types are the same,the way of concurrent punishment can be adopted.Flexible and efficient handling of the concurrent punishment for several crimes of accessory punishment is conducive to the protection ofthe implicit human rights of the defendant and the victim.