再论牵连犯

牵连犯是指行为人出于一个最终的犯罪目的实施了数个犯罪行为(目的行为、方法行为或结果行为 )而分别触犯不同罪名的犯罪形态。牵连犯是一种客观存在的犯罪形态,因此,对其宜存不宜废。判断牵连关系,应坚持主客观相统一原则,并由法官结合具体案情判定。对牵连犯的处罚,应坚持从一重重处断原则。

Re-comment on Implicated Offense

An implicated offense is committed when a perpetrator practices more than one criminal act (objective act, methodological act or consequential act) for one purpose and each act constitutes a different crime, respectively. Since implicated offense exists objectively, it is better to preserve it rather than abolish it. To decide whether acts committed have an implicated relationship, a judge should consider both subjective and objective factors, and the facts of specific cases. These authors maintain that, while sentencing, we should apply a principle of “choice of the most serious offense and severer punishment”, i.e. that a perpetrator should be punished in accordance with the most serious one of the offenses committed and the most severe punishment should be imposed for the chosen offense.