论想象竞合犯的若干问题

On Several Issues About Imaginative Joinder of Offenses

想象竞合犯是非数罪形态之一 ,虽然我国现行刑法中并没有想象竞合犯的明文规定 ,但理论上普遍承认这种犯罪形态。想象竞合犯在理论上 ,应承认异种想象竞合犯为宜 ;其法律性质作为科刑上的一罪来理解比较恰当 ;在想象竞合犯的情况下 ,行为人主观上实际是具有数个罪过。

Imaginative joinder of offenses is one of the patterns of non-plural crimes. Although imaginative joinder of offenses is not expressly described by our current criminal law, this kind of crime pattern is admitted in theory. However, in theory the learners still have not come to agreements on many problems. On the basis of comparison and analysis of the relevant controversial problems, the article advances that we should admit imaginary joint crime of different kinds, and it more reasonable to consider its legal nature as one crime in sentence, and in imaginative joinder of offenses the actor practically has several fault in subject. In addition, the article analyzes the punishment principles of imaginative joint of offenses and the difference between imaginative joinder of offenses and overlap of enactments.