不同身份者共同实施身份犯的定性探析——兼评犯罪共同说与行为共同说

对于不同身份者共同实施身份犯的定罪，既要反映共同犯罪的本质特征，又必须符合罪责刑相适应原则的要求。根据犯罪共同说对不同身份者共同实施身份犯时进行统一定罪，才是符合共同犯罪的本质特征的。不同身份者共同实施身份犯时触犯数罪名，这种情况实际上就是想象竞合犯，应按照想象竞合犯“择一重处”的原则，选择处罚较重的犯罪定罪量刑，这不仅符合共同犯罪统一定罪的本质要求，而且符合罪责刑相适应的刑法原则。

Qualitative Research on Joint Status Crime Made by People with Different Identities Also on Crime Common Theory and Behavioral Common Theory

The conviction of joint status crime made by people with different identities should both reflect the essence of joint crime and comply with the principle of suiting penalty to crime. According to the crime common theory, the unified conviction of joint status crime made by people with different identities can reflect the essence of the joint crime. Joint status crime made by people with different identities violates several charges ,which is actually the imaginative joinder of offenses and should be punished in accordance with the principle of ＂choosing a heavier punishment＂. This not only reflects the essence of the unified conviction of the joint crime but also complies with the criminal principle of suiting punishment to crime.