想像竞合犯的理论探究

想像竞合犯,是指行为人实施一个事实行为,而同时触犯两个以上罪名的犯罪形态。其基本特征为:想像的犯罪竞合,实质的、裁判的一罪;基于单一或复合罪过的一个事实行为;同时触犯数个不同罪名的具体犯罪。想像竞合犯不同于规范竞合与结果加重犯。想像竞合犯一个事实行为的重复性,强调的是事实行为在数罪评价中的整体重复,包括准整体重复。打击错误原则上可以视为想像竞合犯的情形。对于想像竞合犯从一重处断。

A Theoretical Research upon Imaginative Joinder of Offenses

Imaginative joinder of offenses is the criminal pattern arising from the factual act executed by an actor, and simultaneously violating two more kinds of crimes, the basic feature is imaginative joinder of crimes, and in essence it is a singular judicative crime; it is established on the basis of a factual act with a singular or compound crime; and simultaneously it also a concrete offense violating various crimes. Imaginative joinder of offenses is different from normative joinder and aggregated consequential offense. The repetition of a factual offence of imaginative joinder of offenses stresses the overall repetition of it in the evaluation of various crimes, including quasi-overall repetition. Wrongful crime-combating, in principle, may be recognized as imaginative joinder of offenses. As to imaginative joinder of offenses, it shall be sentenced by the most severe crime.