罪数形态下的自首认定问题

发布时间：2019-01-28 22:38

【摘要】：自首认定中主要犯罪事实和余罪自首中同种罪行在和罪数形态交叉的时候存在司法的困惑。罪数判定的核心是构成要件,构成的个数决定罪的个数是原则,多个构成一罪化是裁判需要的例外。类似于同种数罪的实质上是数罪的牵连犯、吸收犯和连续犯在处断上应该采取一样的方法,即判决宣告前一罪处理,判决宣告后作数罪并罚,但是连续犯和同种数罪被法定化为情节加重犯的只能作一罪处理,凡是一罪的规定可以认定部分之间具有法律、事实上的密切关联。判决宣告后数罪并罚的同种数罪、牵连犯、吸收犯和连续犯,单独定罪的部分与已判决部分没有法律、事实上的密切关联,可以认定余罪自首。判决宣告前的自首进行事实主次的比较,判决宣告后则依数罪并罚理论各自成立一般自首或余罪自首。
[Abstract]:In the identification of the main crime facts and the remaining crimes, the same kind of crime exists judicial confusion when it is crossed with the number of crimes. The core of the determination of the number of crimes is the constitutive elements, the number of which determines the number of crimes is the principle, and the crime of multiple constitution is the exception of the need of the referee. Similar to the fact that the same kind of multiple crimes is implicated in a number of crimes, the same method should be adopted in the adjudication of the absorbing crime and the successive crime, that is, to deal with the crime before the judgment is pronounced, and to punish several crimes together after the judgment is pronounced. However, if the continuous crime and the same crime are legalized as aggravating circumstances, only one crime can be dealt with, and the provisions of one crime can be recognized as having a close legal and de facto connection. The same kind of crime, implicated crime, absorption crime and successive crime after the judgment is declared, the part of the individual conviction has no law with the judgment part, the fact is closely related, we can confirm the surplus crime to turn itself in. The confessions before the judgment are compared in fact, and the general surrender or the residual crime surrender is established according to the theory of concurrent punishment for several crimes after the declaration of the judgment.
【作者单位】：集美大学法学院;
【分类号】：D924.1

【共引文献】