罪数论的体系性反思与建构

罪数论肩负解决罪数的判定基准及其处罚原则的双重任务.其中,罪数的处罚原则是本源问题,罪数的判定基准是衍生问题.罪数判断的实质是检视行为事实与犯罪构成是否相符合的过程,因而应以犯罪构成为基准,且重在行为要素的判断.确定罪数的处罚原则应遵循罪刑均衡原则,坚持一罪一罚,数罪数罚,但对数额犯等个别罪数类型,出于诉讼效益考虑,可以采用累计处理方式.确定罪数的具体类型,便于对行为事实之罪数的判定,因而应以行为事实之结构类型为标本,同时结合认知必要性及法之合理规范.

Retrospection and Construction of the System of Crime Quantity

Crime quantity refers to the number of crimes in a case. The theory of crime quantity focuses on the criterion of one crime or more in a case committed by an offender and the principle of punishment, which is the main point involved in criminal institutions. And the theory takes the burden to deal with the problem concerning both the crime quantity and the principle of punishment. The principle of punishment originates from the source in the sense of criminal law from which the crime quantity derives through the theory evolving process. It is also a problem concerning the number of crime in a case and the principle of punishment in legal practice. Therefore, to resolve the crime quantity and then the criterion of judging the crime number is the way to resolve the problem above mentioned.The essence of judging crime quantity is a process to see whether the facts of actus reus correspond with the crime constitution on which it is based, and focus on the judgment. Crime constitution is the only criterion for both the commitment of crime and the judgment of crime number. The fact of actus reus satisfies a crime requirement, which is a crime, otherwise more crimes. To judge the action element, it shall take the single number standard. It is necessary to transit the category of action into a specific actus reus pattern, and then analyse the action fact through common sense, legal experience and theory and the like to make it clear whether facts of actus reus could be contained in action pattern.It is necessary to keep a balance in crime and punishment, which is the principle of one crime one punishment, deducing the rest from this. No matter what the same crimes or not, the principles of joinder of punishments for plural crimes committed by one person should be applied and restricted by the principle of lenitive aggravation. However, for some amounts of crime of different patterns like property crime and economic crime, in consideration of litigation efficiency, can be adopted the mode of accruement which is taken by China Tang Lv(Tang Law) and U.S. Federal Sentencing Guidelines. The mode of accruement is an exceptional form of the doctrine of cumulation of punishments as it is not good to the offender. It should be limited seriously in the field of economic crime.It is necessary to confirm the specific pattern of crime number for judging the quantity of facts of actus reus, which is essential to make the construction pattern of facts of actus reus as a sample according to the reasonable legislation and recognition. The pattern of crime number is the result of generalization of facts of actus reus. Its basic construction is open because the facts of actus reus is dynamic. The determination of the pattern of crime number is closely related to legislation, which transformation usually brings out the modulation of pattern. The specific patterns of crime number include not only the single crime pattern but also the plural crime pattern.