法条竞合理论的反思与重构

发布时间：2018-02-15 19:45

本文关键词： 法条竞合体系地位本质与范围评价原则适用原则　出处：《暨南大学》2015年硕士论文　论文类型：学位论文

【摘要】：为了结束法条竞合理论无休止的争鸣,司法实践在面对法条竞合问题时准确选择适用法条,运用文献与比较研究两种方法梳理现有观点,并对理论进行重构。法条竞合是法律责任竞合的一种,法律责任竞合属于法律归责研究的领域,因此,法条竞合也应被置于研究刑事归责的刑罚论。法条竞合是法律本质与社会本质的统一。构成要件的包容性一致是法条竞合的法律本质,也是其逻辑基础,揭示了构成法条竞合的法条之间应具有错综复杂包含关系。被侵害利益的部分同一是法条竞合的社会本质,同时也是其社会基础,意味着要构成法条竞合,涉及罪名保护的利益一定要有重合。二者也是法条竞合与想象竞合区分的关键所在。法条竞合的繁杂分类与不同的法条适用原则,使得法条竞合的司法实践混乱不堪。事实上,法条竞合只有特殊关系与择一关系两个种类。传统观点认为,引申于行为与责任同在原则的禁止重复评价原则是法条竞合的唯一评价原则,然而,其对于择一关系的法条竞合却并不适用。因此,根基于罪责刑相适应原则的全面评价原则仍然不能被放弃作为法条竞合的一个评价原则。“重法优先”不适用于特殊关系法条竞合,“特殊法优先”是其唯一适用原则;在择一关系法条竞合情况下,由于需要结合禁止重复评价原则与全面评价原则,则应该考虑刑罚全面原则。
[Abstract]:In order to put an end to the endless contending of the theory of competing articles of law, the judicial practice, in the face of the problem of competing articles of law, selects the applicable articles of law accurately, combs the existing viewpoints by using the two methods of literature and comparative study. And reconstructing the theory. The concurrence of legal articles is a kind of concurrence of legal liability, which belongs to the research field of legal imputation, therefore, The concurrence of articles of law should also be placed on the theory of penalty of criminal imputation. It is the unity of the essence of law and the essence of society. The inclusive consistency of the constituent elements is the legal essence and the logical basis of the concurrence of articles of law. It is revealed that there should be intricate and complicated inclusive relations between the articles which constitute the overlapping of articles of law. The part of the infringed interests is the social essence of the overlapping of articles of law, and it is also the social foundation, which means that the competing articles of law should be constituted. The interests involved in the protection of the crime must be overlapped. The two are also the key to the distinction between the competing articles of laws and the imaginative ones. The complicated classification of the competing articles of law and the principles of application of different articles of law make the judicial practice of the competing articles of laws very confusing. In fact, there is a great deal of confusion in the judicial practice of the competing articles of laws. There are only two kinds of special relationship and alternative relation. The traditional view is that the principle of prohibiting repeated evaluation, which is derived from the principle of the coexistence of behavior and responsibility, is the only principle of evaluation of the concurrence of articles of law. It does not apply to the overlapping of laws on alternative relationships. The comprehensive evaluation principle, which is based on the principle of adaptation of crime, responsibility and punishment, can still not be abandoned as an evaluation principle of the concurrence of articles of law. "priority of law" does not apply to the concurrence of articles of law of special relationship, and "priority of special law" is its only applicable principle. In the case of competing articles of the law of alternative relation, the comprehensive principle of penalty should be considered because of the need to combine the principle of prohibiting repeated evaluation with the principle of comprehensive evaluation.
【学位授予单位】：暨南大学
【学位级别】：硕士
【学位授予年份】：2015
【分类号】：D914

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