牵连犯不要论

发布时间：2018-09-05 16:13

【摘要】：在各国的刑事立法中,牵连犯表现各不相同。在我国的立法中牵连犯没有明确的概念和处罚原则,但是在司法实践中牵连犯却是客观存在的现象。对牵连犯概念和牵连关系的认定在理论中出现了极大的分歧,给刑事司法实践造成了诸多不便。牵连犯在我国不是一个法定概念。除极少数国家如日本以及我国的台湾地区有规定外,绝大多数国家的刑事立法中都没有出现过牵连犯这一概念,但在我国刑法理论中却是一个相当重要的理论范畴。近年来,刑法学界对牵连犯概念、牵连关系以及处断原则等相关内容的探讨从未休止,出现了保留论和不要论两大阵营。台湾地区在2005年修改刑法时,取消了牵连犯的规定,却没有解决现实中牵连现象存在的问题。所以对牵连犯的态度要慎重,在提出取消的同时更要考虑由此而来带来的后果,并探讨出一套完整的善后的处置对策。本文拟从国内外牵连犯立法和理论现状的梳理和剖析出发,对我国牵连犯存在的问题进行深入揭示,进而提出切实可行的处置对策。本文主要分为以下几个部分:一是对本文的理论背景、研究方法以及研究意义等进行介绍。二是对牵连犯的立法和理论现状进行简要介绍。三是深刻剖析我国牵连犯的问题所在。四是为取消牵连犯寻找理论支持。五是探讨取消牵连犯之后的处置对策,及其意义之所在。在取消牵连犯之后,依据不同的情形分别纳入想象竞合犯、吸收犯以及数罪并罚的范畴,既有足够的理论基础支撑,也有实现的可能性,是具有合理性的。
[Abstract]:In the criminal legislation of various countries, implicated criminals are different. There is no clear concept and punishment principle of implicated crime in our country's legislation, but it is an objective phenomenon in judicial practice. There are great differences in the theory of the concept of implicated crime and the relationship of implicated, which has caused many inconvenience to the practice of criminal justice. Implicated crime is not a legal concept in our country. Except for a few countries such as Japan and Taiwan, the concept of implicated offense has not appeared in the criminal legislation of most countries, but it is a very important theoretical category in the criminal law theory of our country. In recent years, the criminal law circles have never stopped discussing the concept of implicated offense, the relation of implicated and the principle of adjudication, and there are two camps of reservation theory and no theory. When the criminal law was revised in 2005 in Taiwan, the stipulation of implicated crime was abolished, but the problem of implicated phenomenon in reality was not solved. Therefore, the attitude of implicated crime should be careful, and the consequences should be considered at the same time that the cancellation is put forward, and a set of complete countermeasures to deal with the aftermath should be discussed. Based on the analysis of the legislation and theory of implicated crime at home and abroad, this paper reveals the existing problems of implicated crime in our country and puts forward some feasible countermeasures. This paper is divided into the following parts: first, the theoretical background, research methods and research significance are introduced. The second is a brief introduction to the legislation and theory of implicated crime. Third, deeply analyze the problem of implicated crime in our country. Fourth, to find theoretical support for the elimination of implicated offenders. The fifth is to discuss the countermeasures after the cancellation of implicated crime, and its significance. After canceling implicated crime, it is reasonable to bring it into the categories of imaginative joinder, absorbent crime and multiple crimes combined punishment according to different circumstances, which has enough theoretical support and possibility of realization.
【学位授予单位】：四川师范大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.1

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