放火罪与故意杀人罪关系新论

通说认为,放火罪和故意杀人罪是法条竞合关系,但无力解释为何放火罪未造成重伤以上结果的法定刑轻于故意杀人罪的法定刑。为追求罪刑相适应,以杀人故意实施放火行为,又危害公共安全的,成立放火罪与故意杀人罪想象竞合犯的观点逐渐占据优势。但放火罪中的致人死亡包括故意杀人,这表明放火罪能够包含杀人的故意与致人死亡的结果,并不符合想象竞合的适用前提。事实上,罪刑失衡的质疑不成立,特别法是重法时,普通法的量刑应当受到特别法的限制。未造成重伤以上后果的故意杀人行为的量刑本应受放火罪法定刑的限制,处3年以上10年以下有期徒刑。

New Theory of Relationship Between Arson and Crime of Intentional Homicide

The general theory that arson and crime of intentional homicide have the relationship of coincidence of law articles is hard to explain the reason why the former when it does not result in grievous injuries is less serious than the latter .In order to insist on the principle of suiting punishment to crime , the viewpoint of imaginative joint-er of such two offenses is becoming popular when the intentional homicide with the means of arson threatens the public security .However , since the arson contains subjective intention and the result of death , it lacks the premise of imaginative jointer of offenses .In fact, the question about unsuitable punishment to crime is not correct because when special law falls in severe one , sentencing of common law should be limited by it .Therefore , the legal pun-ishment range of the crime of intentional homicide without grievous injuries must agree with that of arson , ranging from 3 years to 10 years.