想象竞合犯的批判与再认识

想象竞合犯通常被认为是形式上的数罪、实质上的一罪,也有学者认为其是形式上的数罪、科刑上的一罪,尽管存有差异,但两者都主张对想象竞合犯应当从一重罪处断.但是,仔细分析这两种观点,可以发现它们是概念不清、逻辑矛盾的产物,都存在混淆概念、肢解犯罪构成或者是逻辑前后矛盾的问题.事实上,想象竞合犯并非形式上的数罪,而是实质上的数罪;对它的处断原则也不宜按照传统"从一重处",而应该数罪并罚.

Repudiation and Re-ascertainment About Imaginative Joinder of Offenders

Imaginative joinder of offenders is usually regarded as several crimes in form but only one crime in substance in mainstream theory.Some scholars consider it to be several crimes in form and one crime in sentence.Despite the differ- ence between them,the two opinions agree that imaginative joinder of offenders should be inflicted punishment with one heavier crime.However,if we analyze this two points carefully,we can find that they are results of unclear conception and inconsistent logic.Both of them have problems in garbling concept,dividing composition of crime or incompatible log- ic.In fact,imaginative joinder of offenders is not several crimes in form but several crimes in substance.Its principle of sentence is unfavorable to be inflicted punishment with one heavier crime as tradition but should be concurrent punishment for several crimes.