异种自由刑数罪并罚规则研究

异种自由刑数罪并罚是在原有数罪并罚规则基础之上,针对多样化的犯罪现象与司法适用而设置的规则。根据我国现行《刑法》规定的异种自由刑并罚内容,吸收原则与并科原则各自蕴含着合理性依据。然而立足于整体数罪并罚的规则,此种规定却存在二者相互矛盾以及刑罚轻重的冲突,给理论研究与实践适用带来困扰。基于此,通过对域外异种自由刑数罪并罚规则的考察,借鉴其中折抵和限制加重原则的内容,提出我国异种自由刑并罚规则的改进建议:对有期徒刑和拘役刑的并罚采用综合折抵原则与限制加重原则的方式,而对有期徒刑、拘役刑和管制刑的并罚继续采用并科原则,从而更好地实现数罪并罚的适用。

On the Cumulative Punishment Rules for Exceptional Freedom Penalty

The cumulative punishment rules for exceptional freedom penalty are based on the cumulative punishment rules. It sets for diversified crimes and the application of justice. According to the combined punishment rules of exceptional freedom penalty in China''s current Criminal Law, the absorption principle and the cumulative principle contain some rational basis. However, based on the overall rule of cumulative punishment, there are conflicts between the two principles which bring trouble to the theory and practice. Based on this, through the investigation of the penalty combination rule for extraterritorial heteronomous crimes, the contents of discounting and limiting aggravating principles are used for reference. It aims to make suggestions on the improvement of the rules for the punishment of different types of free punishment in China. The current exceptional freedom penalty of cumulative punishment rules should be improved, that is, the commutation principle and the limiting aggravation principle are applied to the combination of fixed-term imprisonment and criminal detention. In addition, the combined penalty for fixed-term imprisonment, criminal detention and public surveillance continue to be adopted. It is to apply in cumulative punishment better.