规范目的视角下牵连犯的实践问题与矫正导向——基于2018-2022年2128份裁判文书的法理分析

Practical Problems and Correction Orientation of Implicated Offense from the Perspective of Normative Purpose:A Jurisprudential Analysis Based on 2128 Judgment Documents(2018-2022)

涉及牵连犯的案件数量在不断增长,不同牵连罪名的认可率存在较大差异;实践中牵连关系的认可率保持在50%上下。对牵连犯从一重处断反映了犯罪与刑罚的不相匹配,也没有充分保护法益,并使牵连犯异化为刑事责任减轻事由。有关牵连关系判断的学说无法为司法实践提供可行性标准;牵连犯与牵连关系没有存在的必要。罪刑匹配要求所有不法且有责的要素都要受到刑法评价;牵连关系不是减轻处罚事由;牵连犯与实质数罪没有区别,应数罪并罚。

The number of cases involving implicated offense is growing, and the recognition rate of different implicated offenses varies greatly. In practice, the recognition rate of implicated relationships remains around 50%. The severe punishment of implicated offenders reflects the mismatch between crime and punishment, and does not fully protect legal interests, and alienates implicated offenders into the cause of mitigating criminal responsibility. The theory of implicated relationship judgment cannot provide a feasible standard for judicial practice. There is no need for implicated offender and implicated relationship to exist. The matching of crime and punishment requires that all illegal and responsible elements should be evaluated by criminal law. Implicated relationship is not the cause of mitigating punishment. There is no difference between implicated offense and substantive count crime, which should be punished together.