法条竞合与想象竞合的关系新论——以犯罪的外延为视角

刑法学界通说认为,应该严格区分法条竞合与想象竞合,但是通说的区分标准却存在疑问,必须寻求新的区分标准——通过犯罪的外延可以合理区分二者。由于法条竞合与想象竞合都是一行为触犯数个罪名,即一行为符合数个犯罪的犯罪构成,换言之,就是数罪名的外延存在重合关系。从实质上说法,条竞合与想象竞合都是犯罪之间的竞合(重合)关系。从逻辑上而言,犯罪之间的竞合关系包括从属关系和交叉关系。法条竞合只存在特别关系,而特别关系属于从属关系。想象竞合犯其实就属于交叉关系。

New Theory on the Relationship Between Overlap of Law Articles and Imaginative Jointer of Offenses---From the Angle of Extension of Crime

The criminal law scholars generally believe that overlap of law articles and imaginative jointer of of-fenses should be strictly distinguished , but since they haven＇t put forward a reasonable distinguishing standard , we have to seek a new one／from the angle of extension of crime .Actually ,overlap of law articles and imaginative joint-er of offensesshare a common thing that although there is only one act concerned , but it violates several crimes , in other words , it satisfies the constitution of a number of crimes , and this means the extensions of several crimes are coincident .In essence , both overlap of law articles and imaginative jointer of offenses produce the coincidence of different crimes which includes subordinate and cross relationships; in logic, while overlap of law articles can be classified as the subordinate relationship , imaginative jointer of offenses belongs to the cross one .