想象競合的功能及其存在根據

The Function of Conceptual Concurrence and Its Foundation

將罪數論升級為競合論，關鍵在於要使罪數論的定罪量刑功能轉變為競合論的量刑功能。想像競合是競合論中最重要的成員，它是一個針對自然行為犯數罪如何量刑的理論。在想像競合行為訂罪時，罪犯構成仍是定罪的唯一標準，因此想像競合為數罪，在判決書中，要將數罪一一列明。如果對想像競合數罪併罰，就否定了其存在的必要性。不能對想像競合數罪併罰的理由，就是想向競合的存在根據。想像競合的數罪中，不法量刑情節與特殊預防必要性的情節高度重合，數罪併罰會造成量刑中的重複評價。較輕的一罪在想像競合的量刑中仍具有一定的發言權，即宣告不能低於輕罪的最低刑，同時必須考慮輕罪的附加刑。To transform the multiple crimes doctrine into concurrence doctrine, it is essential to convert the convicting and sentencing functions of multiple crimes doctrine into the sentencing function of concurrence doctrine. As the most critical component of concurrence doctrine, conceptual concurrence should be deemed as a theory on how to sentence reasonably when the same act has been convicted of multiple crimes. The constituent elements are still the sole criterion for testing whether the same act is one or more than one crime(s), and thus all the crimes in conceptual concurrence should be convicted in the judgment. If the consolidated punishments have been announced in conceptual concurrence, the existence of the concept of conceptual concurrence is pointless;the foundation of conceptual concurrence is the reason why the multiple convictions should not be applied. During the sentencing for multiple crimes in conceptual concurrence, the sentencing circumstances of illegality and special deterrence overlap. Consolidated punishments would probably result in the double-evaluation of those circumstances, which would go against legitimate interests of the defendants. Although the final sentence should be mainly based on the aggravated crime, the minimum punishment of the mitigating crimes remains its