牵连关系的类型——基于刑事立法、司法解释规定的分析

Typology of Implicated Relationship in Criminal Law

厘清牵连犯问题,有必要先区分“规范的牵连犯概念”与“事实的牵连犯现象”两个范畴。在牵连犯现象客观存在的情况下,应将关注点从牵连犯存废之争转向如何界定类型化牵连关系。对牵连犯现象进行归纳总结和类型化分析,是可尝试的问题解决方案。通过样本分析发现,立法中唯一呈现出类型化特征的“受贿犯罪与徇私型渎职犯罪”类型,因受制于加重犯立法模式和司法解释数罪并罚的规定,难以被推广运用。相较而言,司法解释提供了更丰富的分析样本,其大体可分为三种类型:侵害法益同一型、必然性关联型和高伴随关系型。前两类分别因“侵害同一法益”和“(准)想象竞合”特性而具有较牢固的从一重处断基础;而占比最多的高伴随关系型,大多数也坚持了客观的、类型化牵连关系的基本立场。

To clarify the issue of implicated offense, it is necessary to distinguish between the normative conception of implicated offense and the factual phenomenon of implicated offense. Since the phenomenon of implicated offense is an objective existence that cannot be denied, the focus should be shifted from the dispute over the retention or abolition of implicated offense to how to define the theoretical types of implicated relationship, and the typological analysis of the phenomenon of implicated offense is one of the important attempts to solve the problem. Through the empirical analysis, this article finds that the only crimes with typological characteristics in the Criminal Law are bribery and malfeasance. However, they are restricted by the stipulations on “aggravated bribery” in the Criminal Law and the provisions on “combined punishments of several crimes” in judicial interpretations, which results in their limited application. Judicial interpretations provide a wealth of samples to analyze implicated offenses. This article reviews these samples and divides them into three types, that is, crimes that infringe the same legal interests, crimes that have inevitable correlations, and crimes that have high-adjoint relationships. The first two types have a strong basis for imposing punishment for the most serious of imaginative joinder of offenses because they infringe upon the same legal interests or have(quasi) imaginative concurrence characteristics. For most of the crimes with high-adjoint relationship, which have the highest percentage among the three types of samples, the basic position of objective and typed implicated relations is also adhered to.