论连续犯概念的存废--以法律效果为视角

连续犯的处罚缺乏统一的标准,很多直接依据法律的有关规定即可,而排除连续犯的概念,以同种数罪论处,在处罚实际效果上差异甚微.作为连续犯法律依据的追诉时效的规定纯属多余,仅依时效中断的理论就能确定,且更为合理.受一事不再理原则的制约,连续犯的既判力及于事后发现的部分犯罪行为,容易使行为人避重就轻地脱罪,也使这一概念广受非难.此外,这一概念存立的诉讼经济意义也非常有限.因此,连续犯的概念应予废除.

On Retention and Abolishment of Continuing Crime--From Its Legal Effect

Because of the lack of universal criteria,most continuing crimes can be punished directly according to law,and there is little difference in punishment between abolishing the concept of continuing crime and regarding it as plural crimes of the same kind.Provision of limitation of prosecution,the legal basis of continuing crime,is unnecesary.The problem can better be solved by theory of interruption of limitation.Restricted by principle of non bis in idem,force of judgments of continuing crime is effective on criminal acts found after judgments and this makes the doer easily escapes from the punishment,so the concept is widely condemned.Inaddition,the significance of litigious economy is also limited because of its existence.In all,the concept of continuing crime should be abolished.