法条竞合特别关系及其处理

特别法条惟轻,造成法条竞合特别关系的中国式争议。法条竞合与想象竞合的结构差异,表明不必区分二者的"大竞合论"不能成立。法益同一是判断法条竞合的实质标准;"本法另有规定的,依照规定"是注意规定,是法条竞合适用原则的重申。"异质的法条竞合"现象下特殊法条数额标准的双重任务以及"典型(常态)立法技术",表明"特别法条惟轻"立法并非没有章法;即便立法有误,适用重法优先原则也无异于让行为人为立法错误"埋单";罪量要素的特殊性表明,应先运用法条竞合理论决定行为类型定型,再根据数量要素,判断该行为是一般违法抑或犯罪、轻罪抑或重罪。只有交叉、双包容关系下的法条竞合,方有"重法优于轻法"之适用。

Dealing with the Special Relationship of Article Concurrence

In Chinese criminal law,some special articles provide lighter punishment than the ordinary articles,which leads to a Chinese-style controversy about the special relationship of the concurrence of articles,i.e.,whether to stick to the principle of "priority of special articles",or to apply the principle of "severe articles are superior to lenient articles" supplementally? Some scholars claim that there is no need to distinguish strictly the concurrence of articles and the imaginative concurrence of crimes,and all the concurrence should be treated according to the severer crime.But the structural difference of the concurrence of articles and the imaginative concurrence in "one crime" and "several crimes" shows their different treatments of declaration of crimes,thus the above claim cannot be established.The identity of legal interest is the substantive standard to distinguish the concurrence of articles and the imaginative concurrence. The phenomenon of "special articles provide lighter punishment" appears in the heterogeneous concurrence of articles,which is not haphazard according to the dual tasks of the quota factors of the special articles of embodying the infringing extent to plural legal interests and the typical legislative method.Even if the special articles are really haphazard,there is also no reason to ask the actors to pay for legislator’s mistakes. In Chinese criminal law,the constitutive elements of a crime can be divided into the "quality factors" and the "quota factors",and the latter only shows the degree of the misfeasance or crime.However,the theory of the concurrence of articles from abroad can be applied only in the meaning of the type of act.Thus we should first use the theory of the concurrence of articles to decide the type of behavior,and then determine the division of public powers according to the quota factors.The behavior which did not reach the amount standard of the special article but had exceeded the amount standard of the ordinary article cannot be convinced according to the ordinary article.Only in the cross and double-inclusive concurrence of articles can we use the principle of "severe articles are superior to lenient articles".