法条竞合、想象竞合概念之废除——兼论刑法上不同构成要件的五种逻辑关系

发布时间：2018-08-19 13:35

【摘要】：当今刑法理论中,罪数论观点百家争鸣。法条竞合的概念从被置于罪数体系之外,到被归为单纯的一罪中,再到成为竞合论中外延最广的概念。随着竞合论逐步取代罪数论,法条竞合与想象竞合的内涵逐步被扩充,概念逐步被"外置",法条竞合、想象竞合概念已名存实亡。可以打破既有体系框架,废除法条竞合、想象竞合概念,通过刑法上异质行为的特别、吸收、交叉、转化、并罚五种逻辑关系取代传统罪数论体系。特别关系,是成立此罪必然成立彼罪的逻辑必然关系;吸收关系,指一罪涵盖另一罪构成要件的关系;交叉关系,是此罪的一部分被彼罪包容,另一部分包容彼罪的关系;转化关系指一罪符合特定条件适用另一罪法定刑的关系。
[Abstract]:In the theory of criminal law nowadays, the viewpoint of number theory of crime is a hundred schools of thought. The concept of the concurrence of laws and articles has been placed outside the system of number of crimes, to be classified as a simple crime, and then to become the most extensive concept in the theory of competition and coincidence. With the gradual replacement of the theory of the number of crimes by the theory of competition and coincidence, the connotation of the concurrence of law and imagination is gradually expanded, the concept is gradually "put out", and the concept of "coincidence of laws" has already existed in name. It can break the frame of existing system, abolish the concept of overlapping of laws, imagine the concept of concurrence, and replace the traditional system of number theory of crime by the special, absorbing, crossing, transforming and punishing five kinds of logic relations in criminal law. Special relationship is the logical and inevitable relationship of establishing this crime and the other crime; absorption relation refers to the relation of one crime covering the other crime constituent elements; the cross relation is the relation of one part of this crime being tolerated by that crime and the other part tolerating the other crime; Transformation relation refers to the relationship between one crime and the other.
【作者单位】：北京大学法学院;
【分类号】：D924

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