想象竞合犯理论的批判与重构

【作者】 蔡军；

【导师】 陈忠林；

【作者基本信息】 西南政法大学 ， 刑法， 2009， 博士

【摘要】 在刑法理论上,想象竞合犯作为一个重要的罪数形态,历来受到中外刑法学者的关注。然而,随着研究的不断深入,学者们却愈发觉得想象竞合犯理论到了“山穷水尽疑无路”的境地。笔者认为,现行理论陷入困境的症结在于,传统学说对于作为构建想象竞合犯理论基础的“行为”产生了错误的解读。因此,笔者在本文中即以“行为”的重新阐述为研究进路,对传统想象竞合犯理论进行批判,并在此基础上予以重构性反思。除了引言和结语外,本文共分为六章,分别为绪论、想象竞合犯结构论(上)、想象竞合犯结构论(下)、想象竞合犯本质论、想象竞合犯与相关范畴的关系论和想象竞合犯处断论。现将各部分内容摘要如下:第一章,绪论:问题展开。在该部分,笔者首先对想象竞合犯的概念和结构进行了简单分析,认为:从形式上看,想象竞合犯好像是一行为触犯数个刑法法规,而实质上这种认识并不符合事实真相;想象竞合犯的基本结构应当是“行为人仅实施形式上的‘一个行为’”和“形式上的‘一个行为’符合数个犯罪构成”。同时,笔者借助对想象竞合犯立法和理论发展历程的梳理,展示了当前想象竞合犯理论研究的尴尬局面,指出了当前理论研究的问题之所在,提出“行为”是解决一切刑法理论疑难的“钥匙”。笔者认为,当前想象竞合犯的理论研究在出发点时就已经误入歧途,遂会导致对整个问题产生越厘越模糊,渐行渐远的现象。想象竞合犯理论研究的出发点应当是其行为性质的界定问题,只有辨清想象竞合犯的行为本质,才能够准确判明其罪数本质,为其处断原则的设置提供科学的前提和标准。归纳起来,笔者认为造成想象竞合犯“无解”的根源在于理论研究的两大误区,即对于行为概念的混乱认识和罪数标准的错误理解及运用。第二章,想象竞合犯结构论(上)——“一行为”之辩。一般认为,“一行为”是想象竞合犯赖以成立的基本结构之一,而想象竞合犯理论上的疑难和争论集中体现在对于“一行为”的理解上。笔者认为,当前学界用传统的行为理论来阐述和理解想象竞合犯,这本身就存在问题,因为传统的几大行为论并没有能够正确地阐述行为的概念。如,它们均将“身体动静”作为行为概念的表述要素,都认为人的行为可以仅仅表述为人的身体动静。这些仅仅重行为的“外观”而忽视行为的“实质”,仅重行为的“形式”而忽视行为的“内容”的形而上学思维,必然会导致行为概念逻辑性的缺失,从而使其失去应有的机能。根据辩证唯物主义哲学,“行为”是对人类能动实践活动的抽象,是一个“主观见之于客观”的过程。行为应当具备主体、客体、主观、客观等要件。分析行为的各个要件并结合人的社会性本质的考察,可以将行为概念表述为:行为是指行为人控制或应该控制一定的条件,作用于一定对象存在状态的过程。这实际上就是一般意义上的行为概念。目前,刑法理论上对想象竞合犯中的“一行为”的性质存在不同的认识,其主要原因在于:一方面学者们在理解想象竞合犯的行为性质时,混淆了评价客体与客体评价的关系,即“存在”和“当为”的关系;另一方面,我国学者对于行为普遍存在着误解和误用。在澄清相关概念和范畴的关系之后,笔者认为想象竞合犯的“行为”应当是不掺杂任何价值评价色彩的一般意义上的行为,是行为的本原面貌。关于行为个数的判断,在刑法理论上历来众说纷纭,主要存在着自然的见解、社会的见解、构成要件的见解和法的见解等四种主张。这四种主张均有不同程度的缺陷。行为是分层次的,在不同的评价层次、不同的评价领域和出于不同的评价目的,行为的具体概念会有所不同。行为个数的判断标准会随着行为的评价层次、所处领域和评价目的的不同而有所变化。在一般意义上(非价值评价时),行为个数的判断标准应当是,而且只能是行为的主观要件。主观要件的内容不仅决定了行为的性质,而且也决定了行为的个数。根据这个标准,行为人在一个主观内容(认识和控制状况的具体内容)的支配下所实施的一个或者一系列举动就是一个行为,在数个主观内容的支配下所实施的举动就是数个行为。在规范价值层面上,行为个数的判断标准是权利和义务,即行使一个权利或者履行(违犯)一个义务时,就是一个行为;行使数个权利或者履行(违犯)数个义务时,就是数个行为。当某一个价值评价体系中仅仅规定义务时,违犯该价值体系中的一个义务就是一个行为;违犯该体系中的数个义务是复数行为。基于上述理解,通说理论上想象竞合犯的“行为”实际上是抛开行为主观面的,外在的、直观的、形式的行为,是传统行为理论所说的排除掉主观内容的“身体动静”。想象竞合犯的“一行为”实质上是数个一般行为共同“寄居于”,或者“借用”同一个外在的、直观的、形式的“躯壳”,即一个或者一系列“身体的动静”。具体言之,想象竞合犯中的“一行为”是形式上的“一行为”,实质上蕴涵了数个一般意义上的行为。因而,想象竞合犯是“一行为之表”掩盖着“数行为之实”。第三章,结构论(下)——犯罪构成“数”之判断。行为符合数个犯罪构成是想象竞合犯成立的另一必备要件。结合行为的概念并从实然的角度分析,犯罪构成应当是刑法所规定的、决定某一行为成立犯罪所必需的一切客观要件和主观要件的有机统一整体。大陆法系的犯罪构成理论经历了由构成要件只是犯罪类型的指导形象,到构成要件是违法性的征表,再到构成要件是违法类型,并最终发展到构成要件是违法责任类型的发展过程。这种发展状况与我国犯罪构成理论有着殊途同归之处。中外犯罪构成理论的发展,最终共同验证了一个事实:既然犯罪是“主观见之于客观”的过程,那么作为犯罪行为模型式反映的犯罪构成也应当是主客观的有机统一整体,犯罪主观方面和客观方面不可分割。相较于大陆法系的犯罪构成理论,我国传统的犯罪构成理论具有更大的合理性。然而,长期以来,学界对于犯罪构成及犯罪构成要件存在着诸多错误认识。其实,犯罪构成的各要件是一种辩证统一关系,犯罪构成的核心并非传统观点所认为的客观要件——“行为”,而是犯罪构成的主观要件——行为中所包含的主观罪过。罪过内容代表了犯罪行为的性质,对犯罪行为起到支配性作用。由于犯罪构成是体现各种具体犯罪特殊本质的法律结构,因此刑法对一个犯罪就只规定一个犯罪构成。行为符合一个犯罪构成,只能成立一个犯罪;行为符合不同性质的数个犯罪构成,就构成性质不同的数个犯罪。行为符合数个犯罪构成有两种情形:行为符合两个以上不同性质的犯罪构成;一个人实施的行为触犯了数个同一犯罪构成。第四章,想象竞合犯本质论——兼谈罪数标准及其适用。关于想象竞合犯的本质,理论上存在实质的一罪说、实质的数罪说、科刑上的一罪说和法条竞合说等四种不同见解。上述各说均存在众多缺陷和矛盾之处,均无法合理地协调罪数标准、想象竞合犯的罪数本质以及想象竞合犯的处断原则之间的关系。笔者认为,“行为”只是作为想象竞合犯本质分析的基点,但要具体判断想象竞合犯是实质上的一罪还是实质上的数罪竞合,仍然需要在合理地确立一定判断标准的基础上,加以正确运用后才能得出结论。在中外刑法理论上,关于罪数判断标准可谓众说纷纭,它们绝大多数观点的谬误之处也异常明显。对于我国理论界基本上认同的以犯罪构成作为判断罪数的标准,笔者认为是科学合理的。但是在实践中,这一罪数判断标准被忽视甚至被错误地运用,说明该标准仍然有待进一步深化、具体之处。通过对义务、刑法义务、犯罪构成、罪过等关系的分析,可以得出犯罪构成要件是刑法义务的具体体现、主观罪过是犯罪构成核心的结论。如何确定行为人的行为是具备一个犯罪构成,还是具备数个犯罪构成,在认定时关键应把握罪过。所以,罪数的判断标准应当是行为人的“主观罪过”。即一个罪过支配下实施的一系列举动就是一个犯罪行为;反之,数个罪过支配下的举动就是数个犯罪行为。然而,在实际运用罪数判断标准判断犯罪的个数时,还需要遵守一定的基本原理,即穷尽判断原则、禁止重复评价原则。在罪数判断原理的指导下,根据罪数判断的“罪过”标准,并结合想象竞合犯的结构实质考量,可以必然地得出一个结论:想象竞合犯是实质的数罪。也就是说,想象竞合犯的实质是行为人在数个罪过的支配下实施的数个行为,符合数个犯罪构成的犯罪形态。第五章,想象竞合犯与相关范畴的关系论。从目前刑法理论上的探讨来看,与想象竞合犯联系密切的往往有下列几个重要范畴:法条竞合、牵连犯、继续犯等。通过论证,笔者认为法条竞合实质上是犯罪构成要件的排除,是对于一个行为事实从表面上看似乎符合数个刑法规范,实质上只能适用一个刑法规范的规范确定理论。因此,想象竞合犯和法条竞合主要有以下区别:首先,法条竞合是属于刑法具体规范解释论范畴,而想象竞合犯是一种罪数形态;其次,法条竞合实质上只是一行为触犯了一个刑法规范,即一行为符合一个犯罪构成,而想象竞合犯是数个行为实在地符合数个犯罪构成;第三,法条竞合的情况下,只能成立一罪;而想象竞合犯必然是实质的数罪;第四,法条竞合侧重于避免对行为的重复评价,而想象竞合犯侧重于对数个行为的全面评价。当然,法条竞合和想象竞合也有一个最大的相同点,即二者均为假象的竞合。法条竞合的“假”体现在一个行为从表面上看似乎符合数个犯罪构成,实际上只能符合一个犯罪构成;想象竞合犯的“假”体现在从表面上看似乎只有一个行为符合数个犯罪构成,实际上有数个行为分别符合数个犯罪构成。想象竞合犯和牵连犯的区别更为明显:首先,想象竞合犯与牵连犯的根本不同在于二者的数行为在表现形式上的存在差异;其次,想象竞合犯是数个行为,数个罪过,并且数个罪过可以是同一类的罪过形式;而牵连犯的数个行为所触犯的数个犯罪只能是故意犯罪,甚至只能是直接故意犯罪,不会出现想象竞合犯罪过形式上的多元性。在探讨继续犯与想象竞合犯的关系时,主要涉及继续犯与即成犯能否同时成立想象竞合犯问题。对此问题的解决,理论上存在涵摄与除摄之争。这种理论上的争论对我国刑法的理解有一定的启示作用。第六章,想象竞合犯的处断论。关于想象竞合犯的处断原则,中外刑法理论上一直存在“从一重”或者“从一重重”的见解。然而这些见解不仅缺乏足够的理论支持,同时也存在逻辑上的致命缺陷,有违罪刑法定原则和罪刑相适应原则。想象竞合犯的处断,在原理上受到刑法基本立场、刑法基本原则,以及诉讼上一事不再理原则和诉讼经济原则的影响。在现行刑事立法以及刑法理论探讨上,往往对于想象竞合犯以及实质竞合的数罪,形式上是采取不同的处理方式,即对想象竞合犯采取单一刑罚,而对于实质竞合的数罪主要采取并罚的方式。从量刑客观性、诉讼经济以及责任衡平等方面的考虑,单一刑罚制并非科学合理的处断方式,应当予以修正。基于刑法上的基本立场、原则以及诉讼法上的各种考量,笔者主张对于想象竞合犯予以并罚处置,这样才能和想象竞合犯的罪数本质相协调。在当前理论上,存在着对数罪并罚原则的错误理解。其实,数罪并罚并不会导致重刑主义和罪责均衡的失调。更多还原

【Abstract】 In the theory of criminal law, the imaginative joinder of offences, as an important crime form, has attracted the attention of scholars home and abroad all long. However, as the study continuously goes deep, the scholars find that the theory of imaginative joinder of offences has come to a blind alley. In the writer’s opinion, the reason why present theory is caught in trouble is that“the action”underlying the imaginative joinder of offences is mistaken by the traditional theory. So the writer will reelaborate“the action”, criticize the traditional imaginative joinder of offences theory and thus structurally ponder over this thesis.Besides the preface and the epilogue, this book is devided into 6 chapters, which are the introduction, the structrual theory of imaginative joinder of offences(part one), the structrual theory of imaginative joinder of offences(part two), the essential theory of imaginative joinder of offences, the relation theory of the imaginative joinder of offences between its relative category,and the punishment of imaginative joinder of offences. The abstrcat of each chapter are as follows:Chapter 1 Introduction. From here, the thesis carries out. In this part, first of all, the writer gives a simple analysis on the definition and structure of imaginative joinder of offences. From the perspective of the concept, it seems that the one action of Imaginative Joinder of Offences(from the surface)violates several disciplines of criminal law, but actually it is a kind of crime form which doesn’t conform to the fact. The basic structure of Imaginative Joinder of Offences should be the actor only does“one action”in the form and“one action”in the form conforms to several constitutions of a crime. At the same time ,with the help of the arrangment of the development of Imaginative Joinder of Offence’s legislation and theory, the writer opens up the present embarrassing prospect of the theoretical study of Imaginative Joinder of Offences. He also points out where the problem of the imaginative joinder of offences’study lies and that“the action”is the key to all the knotty problems of criminal law. The writer thinks that the present study of the imaginative joinder theory was lead to a wrong way in the beginning. Consequently, this problem is becoming more puzzling and farther from the point. Actually, the starting point of the study of imaginative joinder of offences should be nature of the action .As long as the nature of the action is distinguished , can the nature of the crime be exactly decided. Meanwhile, scientific premise and standards for the punishment principles are offered. All the problems about imaginative joinder of offences are concentrating here. Explicitly speaking, in the writer’s opinion , there two misunderstanding points of the study of imaginative joinder of offences which cause the imaginative joinder of offences has no results. The two points are the confusing cognition of the action concept and the miatanken understanding and use of the standards for crime.Chapter 2 The structrual theory of imaginative joinder of offences(part one)——the argument of“one action”. Generally speaking, One action is one of the basic structure which form imaginative joinder of offences, while the problem and argument of imaginative joinder of offences focus on the understanding of“one action”. The writer contends that there is something wrong with the way in which scholars elaborate and understand the imaginative joinder of offences with traditional action theory. That is because the the several traditional action theories didn’t give a correct concept of the action. They all take“body movement”as expressing element of the concept of action, and think that one’s action can only be expressed as one’s body movement. These metaphysical thoughts, which mere emphasizing on action’s“appearance”, ignoring action’s“essence”, emphasizing on action’s“form”, ignoring action’s“conten”t, must lead to the lack of logic of action concept; thus action concept will lose its original function. According to the dialecical materialism ,“action”is the abstract of human’s dynamic practical activities, a dynamic practising process in which“the subjective is expressed by the objective”. The constitution of action should be a organic integration of the objective element, object element, subjective element and objective element. Through the analysis of action’s subject, object, subjectivity, objectivity and its elements, and together with the investigation of human’s social nature, the writer defines the action as :action means that controls or should control certain conditions, acting on the certain object’s being process. Actually, this is the definition of action in general sense. At present, there are different cognitions of the nature of“one action”of Imaginatative Joinder of Offences in the theory of criminal law. The chief reasons are: firstly scholars mixed the relationship between the evaluation objectivity and evaluation object, i.e. between“being”and“doing”when understanding the action nature of Imaginative Joinder of Offences. On the other hand, the scholars in China have general misunderstandings and misusages on action. After clarifying relative concepts and categorical relationships, the writer thinks that the“action”of Imaginative Joinder of Offences should be the action in general sense existing on the natural meaning without any criminal meaning or other evaluation meanings. It is the oringinal appearance of action. With respect to the judgement of the number of crime, there are a lot of different ideas. The chief four are natural idea, social idea, idea of constitutive elements and legal idea. Each of them has defect in different degree. Action has grades. In different grades or different evaluation fields, or even for different purposes, the concrete concept of action is different. On the basis of this action concept , the writer thinks that the judging criterion of the number of crime will differentiate as the action’s grades and fields differentiate. Meanwhile, the judging criterion will also differentiate according to the purpose of study, evaluation. Generally speaking(without the natural meaning of the action which has value-evaluation, or the meaning of existentialism), the criterion of the number of action should be and could only be the subjective elements of the action. The content of the subjective elements not only decides the nature of action and also its number. According to this standard, the action or a set of actions done by a person under the control of a subjective content(the concrete content of cognition and controlling condition)are one action. Actions done by a person under the control of several subjective contents are several actions. In terms of value, realizing a right or violating an obligation is one action. Realizing several rights or violating several obligations are several actions. When a certain value system just regulates obligation, violating its one obligation is an action; violating several are several actions. On the basis of what’s mentioned above, in the theory, the action of imaginative joinder of offences is an outward , direct and formal action without its subjective aspects. That’s the so-called“body movement”without subjective contents in the traditional action theory. The writer thinks that the“one action”of imaginative joinder of offences is actually several ordinary natural actions together“being paracitic on”or“with the help of”the same outward , direct formal body, i.e. a or a set of“body movement(s)”. In a word, the“one action”of imaginative joinder of offences seems as one action on the surface, but actually contains several actions in general sense. Imaginative joinder of offences is“the surface of one action”covering“the fact of several actions”.Chapter3 The structrual theory of imaginative joinder of offences(part two)——the judgement of the crime’s number. The other necessary element of imaginative joinder of offences is that the action conforms to several crimes. With the definition of action and in terms of the fact, the constitution of a crime should be a organic integration of all the objective elements and subjective elements which is regulated by the criminal law and judges a certain action as a kind of crime. Observing on the development of the criminal constructional theory in the mainland law system, the theory of special constitutive elements of crime develops through several steps, which are special constitutive elements of crime are only the guiding image of crime type; special constitutive elements of crime are the appearance of law-violating; special constitutive elements of crime are a law-violating type; finally special constitutive elements of crime are a law-violating responsibility type. This developing condition has similarities with the criminal constructional theory in China. The criminal constructional theories home and abroad in the end confirm one fact: As crime is a process that“the subjective is expressed by the objective”, constitution of a crime as the model reflection of criminal action should be the integration of subjectivity and objectivity. The subjective and objective aspects of a crime can’t be separated. Comparesed with the criminal constructional theory in the mainland law system, the traditional criminal constructional theory is more reasonable. However, the academia have much misunderstanding about the constitution of a crime and its special constitutive elements of crime is dialetical and united. The core of the constitution of a crime is not the objective elements by traditional opinions, i.e. the action, but the subjective elements. The sujective criminal offense , included in the action represent the nature of the crime action and dominate the crime action. As the constitution of a crime is the legal structure that reflects the special nature of each concrete crime, each crime has only one constitution of a crime. The action conforming to one constitution of a crime is one crime. The constitution of a crime whose action is conforming to different qualities are crimes of different qualities. There are two cases in which the action conforms to several constitutions of a crime. One is that the action conforms to more than two constitutions of a crime of different qualities. The other is that one person’s two action conforms to the same constitution of a crime.Chapter4 The essential theory of imaginative joinder of offences——also talking about the standards for the number of the crime and its application. As to the nature of imaginative joinder of offences, in the theory, there are 4 differences ideas: the essential one crime, the essential plural crimes, the one crime in the scientific criminal law and the overlapping of article partly. These ideas all have many defects and contradictions. They can’t reasonablly coordinate the relationship of the criterion of the number of crime, the nature of the number of crime of Imaginative Joinder of Offences and the judging principles of Imaginative Joinder of Offences. The writer contends,“action”is only the basic point of the analysis of imaginative joinder of offences. If we will judge whether the“one action”of imaginative joinder of offences which commits plural crimes is the essential one crime or the essential overlappling of plural crimes partly, we still need to reasonably set a certain criterion and apply it corectly in order to get a conclusion. In the theory of crinimal law home and abroad, there are different views on the criterion for the number of crime. Most of them have very clear erroneous points. With respect to the idea which is on the whole acknowledged its reasonability, writer assents it. However, in practice, this criterion is ignored or even mistakenly used. So this criterion still needs to be deepen and detailed. Through the elaboration of the relationship between obligation, obligation in the criminal law, constitution of a crime and offence ,we can find that special constitutive elements of crime is the concrete embodiment of obligation in the criminal law, and the subjective crime is the core of the constitution of a crime. How to judge one’s action including one constitution of a crime or several constitutions of a crime mainly focuses on offence. As a result, the criterion for the number of should be the actor’s“subjective crime”. A set of actions dominated by one offence is one criminal action. On the contrary, actions dominated by several offences are several criminal actions. However, in the application of this criterion to decide the number of crime, we still need to obey some basic principles , i.e. the principle of completely judgement, the principle of banning repeated judgement. Under the guide of the criterion for the number of crime , according to the“offence”criterion for the number of crime and with the structural natural quailty of imaginatitive joinder of offences, we inevitably come to a conclusion: imaginatitive joinder of offences is plural crimes in essence. Imaginatitive joinder of offences is the actions done by the actor dominated by several criminal offences , sequentially conforming to the crime form which is formed by several constitutions of a crime.Chapter5 The relation theory of the imaginative joinder of offences between its relative category. From the present enquiry in the theory of criminal law, there are several categories which have close relationship with imaginatitive joinder of offences: overlapping of article partly; implacated offence; continuous crime and so on. Through demonstration, the writer thinks that overlapping of article partly is the exceptation of special constitutive elements of crime in essence. It is a norm-determining theory which superficially conforms to several norms in criminal law but actually only fits one norm in criminal law. As a result, the main defferences between imaginatitive joinder of offences and overlapping of article partly are as follows: Firstly, imaginatitive joinder of offences is a crime form while overlapping of article partly belongs to the explaining theory of criminal law’s concrete norm. Secondly, overlapping of article partly is essentially violating a criminal norm,i.e. the action conforming to the constitution of a crime. Thirdly, in the case of overlapping of article partly, there is only one crime . Imaginatitive joinder of offences must be essential plural crimes. Fourthly, overlapping of article partly gives preference to avoiding the repeated evaluation of action. Of course, overlapping of article partly and Imaginative Jonder of Offences have one main identical point, i.e. the two are both imaginative joinder. The falsehood of overlapping of article partly is that the one action conforms to several constitutions of a crime form the surface, but essentially conforms to one constituion of a crime. The falsehood of imaginatitive joinder of offences is that one action conforms to several constitutions of a crime from surface, but essentially several actions conform to several constitutions of a crime. The distinguishments between imaginatitive joinder of offences and implicated offence are more clear. First of all, the radical difference lies in their actions in the expressing ways. Secondly, imaginatitive joinder of offences is several actions, several offences , and these several offences can be the offence of the same category. The several crimes of implicated offence commited by his several actions can only be deliberate crime, even direct crime. It won’t emerge the multiplicity of imaginatitive joinder of offences in the form. When arguing the relationship between continous crime and imaginatitive joinder of offences , whether continuous crime and be-to crime can constitute imaginatitive joinder of offences at the same time is mainly concerned. There is an argument between subsumtion and exclusion in theory with regard to the solution of this problem. This argument to some extent enlighten the understanding of criminal law in China.Chapter6 The punishment of imaginative joinder of offences. With respect to imaginatitive joinder of offences’judging principles, the view of“according to the capital felony”are always existing in the theory of criminal law home and abroad. However, these ideas not only lack sufficient theoretical support, but also have fatal defect in logic. These views lack sufficient theoretical support and meanwhile violating the principle that crimes are judged by law and the principle that crimes match punishments. In theory, the judgement of Imaginative Joinder of Offences is influences by the basic standpoint of criminal law, the basic principles of criminal law, the principle that one case isn’t rehandled in lawsuit and the economic principle in lawsuit. In the present criminal law and the argument of the criminal law’s theory, imaginatitive joinder of offences and plural crimes of essential overlapping are handled by different means. Imaginative Joinder of Offences is given one kind criminal punishment, while plural crimes in essence are given cumulative punishment. With the consideration of the objetivity of criminal quantity, the economy of lawsuit and equal responsibility, the one-criminal-punishment system is not the scientific and reasonable judging method. It should be corrected. On the basis of fundamental standpoint, principles in criminal law and various considerations in lawsuit law, the writer advocates that imaginatitive joinder of offences should take cumulative punishment, which will correspond to the nature of crimes of imaginatitive joinder of offences. At the same time, cumulative punishment won’t cause heavy penalty and the crime andits punishment unbalanced.更多还原