競合處斷原則探究－－兼與周光權、張明楷二位教授商榷

Research on principle of punishing concurrent crime discussion with Guangquan Zhou and Mingkai Zhang

只有包容、交叉關係的法條之間才能成立法條競合，而想像競合的成立與法條關系無關，完全取決於偶然的案件事實“啟動”法條之間的關係。法條競合的本質是犯罪構成要件的重合，旨在防止重複評價，而想像競合的本質是法益侵害事實（結果）的疊加，旨在避免遺漏評價和雙重處罰。法條競合中被排除的法條（劣位法）也能發揮作用，想像競合的所謂“明示 機能”不過是犯罪事實的查明與宣告；只要查明了全部案件事實並在判決書中予以宣告，並從一重處罰，嚴格區分法條競合與想像競合已然失去意義。刑法分則中“本法另有規定的，依照規定”不過是提醒適用重法的補充性條款，並非特別關係法條競合適用原則的重申。《刑法修正案（九）》中“同時構成其他犯罪”條款的大量增設，說明立法者巳經厭倦了是“特別法優先”還是“重法優先”的無謂爭論，認可了無論法條競合還是想像競合，均從一重處罰。

Only articles which have absorption and cross relationship can establish concurrence of articles. Imaginative concurrence has nothing to do with the article relationship. It depends on occasional criminal facts activating the relationship between articles. Concurrence of articles' essence is the superposition between constitutive elements of crime, which is set to prohibit repetitive assessment. Imaginative concurrence's essence is the superposition between the violation of legal interests, and its set to avoid valuation omission and guarantee the inferior articles could work. Inferior articles in concurrence of articles could also work. Imaginative concurrence's so-called 'express function' is only the identification and declaration of the criminal facts, so we have only to find out all the facts of the cases, declare them in the verdict and adopt the method of heavier punishment. In this circumstances, it's meaningless to strictly distinguish concurrence of articles and imaginative concurrence. Provision 'if there is another provision, please conform to it' in the criminal law is only an indicative regulation. It should conform to the principle 'the punishment according to the heavier crime'. Many new articles like 'implementing other crimes at the same time' in Criminal Law Amendment (Ⅸ) illustrate that the legislators are tired of distinguishing 'lex specialis rule' and 'severe articles'priority' and they admit that no matter its concurrence of articles or imaginative concurrence, the crime should be punished by the heavier punishment.