“从一重”处断规则的批判与优化

Criticism and Optimization of“From One Heavy”Disposition Rule

“从一重”处断规则的设置缺乏明确根据,部分适用场域难以界分,在审判实践中未得到一致认可,甚至成为犯罪分子逃避刑事责任的出口。“从一重”处断规则偏离了刑法目的,无法实现法益保护的周延,不能有效维护规范的效力;限制了司法能动性;违背了罪数标准;在刑罚正当性、刑罚目的与功能实现上存在瑕疵。为实现罪责刑相适应,应坚持犯罪构成的罪数标准,通过不法——有责划定应罚性的范围。“从一重”处断规则仅适用于典型的想象竞合,且“重”仅指罪名。今后的立法应谨慎设置这一规则。

In criminal legislation,the setting of the“from one heavy”penalty rule lacks a clear and unified basis,its application field is chaotic,and some cases are even difficult to distinguish.The“from one heavy”punishment rule has not been recognized in trial practice,and even has become an outlet for criminals to evade criminal responsibility.In many cases,the“from one heavy”punishment rule deviates from the purpose of criminal law,and it cannot achieve comprehensive protection of legal interests and effectively maintain the effectiveness of norms;it limits the initiative of the judiciary,and violates the criteria for judging the number of crimes;and there are also flaws in the legitimacy,purpose and function of penalty.In order to realize the adaptation of crime,responsibility and punishment,we should adhere to the standard of the number of crimes constituted by crime,and define the scope of punishment through illegality-responsibility.The rule of“from one heavy”is only applicable to typical imaginative concurrence,but“heavy”only refers to the crime.Future legislation should carefully set this rule.