刑法第294条第3款规定的理解适用问题探讨

刑法第294条第3款规定的＂其他犯罪行为＂不包括敲诈勒索等罪的观点,这与＂犯前两款罪又有其他犯罪行为＂规定不相符。尽管将＂组织、领导、参加黑社会性质组织罪又有其他犯罪行为的＂看成吸收犯并无不当,因为＂组织、领导、参加黑社会性质组织罪＂与＂有其他犯罪行为的＂两者之间确实存在轻重差异;但将其看成牵连犯更有道理。将犯黑社会性质组织犯罪与＂又有其他犯罪行为＂依照数罪并罚原则处理,这不违背禁止重复评价原则。

The Understanding and Application of Paragraph 3 of Article 294 in the Penal Code

It is stipulated by Paragraph 3 of Article 294 in the Penal Code that ＂other crimes＂ do not include those such as the crime of extortion,which is incompatible with the provision that one ＂may commit another crime besides those crimes listed in the first two paragraphs＂.Although it is not wrong to regard those who commit the crime of organizing,leading and participating in the criminal syndicate group with other criminal acts as absorbable offenders,it is more reasonable to take them as implicated offenders because of the difference in severity between the crime of organizing,leading and participating in the criminal syndicate group and other criminal acts.Punishing those who commit organized crimes plus other criminal acts on the principle of cumulative punishment does not violate the principle of prohibiting repeatable evaluation.