我国刑法中牵连关系的形态及其实质分析

牵连犯作为一种罪数形态,在刑法理论中具有重要地位。刑法理论中对牵连犯的判断是以牵连关系为标准,牵连关系在理论上不仅存在两种基本形式,而且也存在多种观点分歧。事实上,牵连关系与犯罪构成要件之间联系密切。当数行为之间的牵连关系属于同一犯罪构成要件之间的牵连时,应认定为一罪,应按从一从重的处断原则处罚;反之,如果数行为属于数个不同犯罪构成要件之间的牵连,则构成数罪,应实行并罚。

Analysis of the Form and Nature of Implicated Offense in Chinese Criminal Law

As an important crime form, the implicated offense has always been an important role in the criminal law theory. Implicated relation is the standard to determine implicated offense in the criminal law theory, at the same time, implicated relations have not only two basic forms in theory, but also there exist many different views about them. In fact, implicated relations are closely related to constitutive elements of a crime. When a number of connection between the acts belong to the same elements of crime, it should be considered as a crime that will be punished in accordance with inflicting a heavier punishment for a serious crime of punish- ment principle of punishment. Conversely,if a number of acts are implicated in different constitutive elements of crime, they should constitute several crimes combining punishment for several crimes.