论我国《刑法》“同时犯”之规定——兼论第二百八十七条之二第三款

On the Stipulation of “Simultaneous Crime” in China's Criminal Law——Also on Article 287(3)

“同时犯”是关于罪数(竞合)的规定。以犯罪成立条件作为罪数判断标准,“同时犯”前款行为与其他犯罪之间,无论在文理上、类型上,还是事实上,都系数罪关系。“同时犯”规定省略了处置理由,导致数罪与处置规则之间衔接不畅。应确立“先犯罪构成,再犯罪构成关系”的罪数(竞合)规则。数罪并罚的处置理由是犯罪成立条件之毫无重合;从一重罪从重处罚的理由是犯罪成立条件之部分重合,包括构成要件行为重叠与构成要件法益重叠。从一重罪处罚的理由是犯罪成立条件之完整重合,但有犯罪成立条件部分重合的情形,此时,司法上应当在从一重罪处罚基础上适当从重。能够与帮信罪“同时构成”的“其他犯罪”,只能是刑法分则中以提供行为作为构成要件行为类型的罪名,不包括关联犯罪共犯罪名。

"Simultaneous crime" is a regulation on the number of crimes(concurrence).Taking the conditions for the establishment of a crime as the criterion for judging the number of crimes,there is a relationship between "simultaneous crime" mentioned in the preceding paragraph and other crimes,no matter in literature,theory,type or fact.The stipulation of "Simultaneous crime" omits the reason for disposition,which leads to the poor connection between several crimes and disposition rules.It is necessary to establish the rule of crime number(concurrence) of "first crime constitution and then crime constitution relation".The reason for the combined punishment of several crimes(Article 198(2)) is that there is no coincidence of the conditions for the establishment of the crime.The reason for the heavier punishment from A felony(Article 307,Paragraph 3 and 4) is that the conditions for the establishment of a crime are partly overlapped,including the overlapping of constitutive elements and the overlapping of legal interests of constitutive elements.The reason for the punishment of a felony is slightly more complicated.Theoretically speaking,it is the complete coincidence of the conditions for the establishment of the crime.But in fact,there is the case of partial overlap of the conditions for the establishment of a crime,at this time,judicature should be from a felony punishment on the basis of the appropriate heavier punishment.The "other crimes" that can be “simultaneous crime” with crime of assisting cybercrime can only be the crimes that take the act of providing as the type of act in the specific provisions of the criminal Law,excluding the crimes of association crime and accomplice.