摘要
现有法条竞合与想象竞合的区分标准均未能把握二者的本质特征与区别,因而存在缺陷。法条竞合与想象竞合的本质区别在于,前者是数法条对同一犯罪行为所造成的全部损害事实的多角度重复评价,而后者是不同法条或者说不同罪名对同一犯罪行为所造成的损害事实的不同部分分别作出评价。法条竞合源于法律的错杂规定,而想象竞合源于同一犯罪行为发生了分别触犯不同罪名的多重损害事实。在法条竞合的情况下,一行为所触犯的数法条在逻辑上均能够对该行为及其造成的损害事实作出全面评价;在想象竞合的情况下,一行为所触犯的数法条至少有一个无法对该行为作出全面评价。
The current standard has not revealed the substantive characteristics of 'statutes joinder of offenses' and 'imaginative joinder of offenses' ,and the essential distinction between them. Thus it has deficiency. The essential distinction between 'statutes joinder of offenses' and 'imaginative joinder of offenses' lies in that the former refers to the situation that several articles of law in different angles describe with overlap the whole damage caused by one criminal act,while the latter refers to the situation that different articles of law (or different accusation) describe different parts of the whole damage caused by the criminal act respectively. 'Statutes joinder of offenses' is due to mixed and complicated provisions,while 'Imaginative joinder of offenses' is because that one criminal act has caused several damages by the name of different offenses. Under the situation of 'statutes joinder of offenses' ,each of the articles offended by the criminal act can give an overall assessment to the criminal damage; while under the situation of 'imaginative joinder of offenses' ,at least one of the articles offended by the criminal act can not give an overall assessment to the criminal damage.
出处
《华南师范大学学报（社会科学版）》
CSSCI
北大核心
2009年第6期107-113,共7页
Journal of South China Normal University：Social Science Edition
关键词
法条竞合
想象竞合
区分标准
法条关系
犯罪构成要件
statutes joinder of offenses
imaginative joinder of offenses
distinction standard
relation between laws
constitutive elements of crime
