罪数形态理论正本清源  

A Systematic Theory of Quantity of Crime

作　　者：刘宪权[1] 

机构地区：[1]华东政法大学

出　　处：《法学研究》2009年第4期122-136,共15页Chinese Journal of Law

摘　　要：罪数形态作为一罪与数罪中诸种复杂的犯罪形态的总称,其既区别于典型一罪,也区别于典型数罪。罪数形态理论既涉及罪数的判定,也涉及罪数的处罚,罪数形态的体系定位应为兼具犯罪论与刑罚论的二元论。在罪数的判断标准上,应注意将形式上罪数的区分标准与法律评价上罪数的处断标准相区别,形式上罪数的区分标准只能是犯罪构成,法律评价上罪数的处断标准则应考虑罪刑均衡、诉讼效益等原则。犯罪构成的复数性、非典型性与法律后果上的不并罚性是罪数形态的两个基本特征。应以有无刑法规定为标准,将罪数形态分为法定的罪数形态和处理的罪数形态两类。Quantity of crime, a subordinate legal terminology that applies to all complex criminal patterns, is different from typical single crime and typical plural crime. The primary task of the research into the theory of quantity of crime is to determinate whether a certain crime is a single crime or a plural one, and to reveal the essential characteristics and constituting elements of all kinds of complicated quantity of crime. The introduction of a systematic theory of quantity of crime is conducive not only to the perfection of criminal judicature, criminal legislation and criminal theory, but also to the prevention of repetitive evaluation of a single crime and the minimization of influx of judges＇ subjective opinions, thus contribute to the realization of justice in criminal law. The theory of quantity of crime, which focuses its attention on problemes such as the determination of the number of crime and the application of penalty thereto, should adhere to the dualistic theory that integrate both the crime theory and penalty theory. With respect to the judging criteria of the quantity of crime, a clear distinction should be made between the criteria in a formal sense and the criteria in a legal appraisal sense. The former takes only the constituting elements of a crime into account, while the latter considers such principles as prosecution efficiency, balance between crime and penalty, etc. Generally speaking, according to the principle of balance between crime and penalty, single crime gets single penalty and plural crime get homologous penalties. But to realize substantive balance, plural crime may sometimes get only one penalty. The prosecution efficiency principle requires that, in some situations, the damage caused by the plural crime must be accumulated, and the criminal act will be judged as one crime pursuant to law. The quantity of crime has two basic features, including its plural and atypical elements in the constitution of a crime and the denial of cumulative punishment thereof. The quantity of cri

关 键 词：罪数形态 体系定位 判断标准 法定形态 处理形态 

分 类 号：D924.1[政治法律—刑法学]