对服刑期间发现漏罪的思考

Ponder over the Discovery of the Omitted Crime in Prison Service

我国刑法第七十条对判决宣告后刑罚执行完毕前发现漏罪的并罚仅作出原则性规定,在司法实践中对于该规定中的“发现漏罪”的理解、适用存在认识分歧,严重影响了法律的统一适用。应对“发现漏罪”的主体、“发现漏罪”的时间等予以明确,只要侦查机关在判决宣告以后刑罚执行完毕以前认为有证据证实服刑人员存在漏罪,就应当适用刑法第七十条的规定进行数罪并罚。

The 70th article of our criminal law makes principled provisions on the combined penalty for the omitted crime found after the announcement of the judgment and before the execution of the penalty.In judicial practice,people differ in understanding and applicability of the "omitted crime’ in this provision,which seriously affects the unified application of the law.The subject and the time of "finding omitted crime" should be clarified.Only when the investigation agencies believe that there is evidence to prove the existence of omitted crime after the announcement of the judgment and before the completion of the execution of the penalty should they apply the provisions of the 70th article of the criminal law for combined punishment for several crimes.