解构与重塑:法条竞合和想象竞合区分之二元化路径

Deconstruction and Reshaping:The Dualization Path of Laws Coincidence and Imaginative Coincidence

法条竞合以特别法优于普通法为原则,想象竞合以重法优于轻法为原则,二者的法律后果、行为构造并不同一。我国也存在具有减轻依据的特别条款,想象竞合具有明示机能,因此二者必须严格界分,从而使罪刑相适应。从形式上看,法条之间存在包容关系;从实质上看,若行为人所符合犯罪的数个法条具有法益上的同一性,且能够对所有的不法内容进行周延的评价时,行为宜认定为法条竞合,否则为想象竞合。

The principle of coincidence of articles of law is based on the one that special law is superior to common law,and the principle of imagining coincidence is based on the one that heavier law is better than lighter law.The legal consequences and behavior structure of the two are not the same.It should be recognized that there are special clauses with mitigation grounds in China.Imaginative coincidence is of explicit function.Therefore,the two must be strictly demarcated so as to adapt the crime and punishment.Seen from the form,there is an inclusive or cross-relationship between the legal provisions,and seen from the essence,if a separate legal article can realize the thorough protection of legal interests,and the several laws that the perpetrator complies with the crime have legal interests,the identity should be regarded as a legal overlap,otherwise it is an imaginary overlap.