法条竞合与想象竞合的区分
张明楷法条竞合与想象竞合的区分
Distinctions Between the Overlap of Articles of Law and the Imaginative Joiner of Offenses
期刊名称：《法学研究》
期刊年份：
作者：张明楷
单位：清华大学法学院
中文关键词：法条竞合;想象竞合;法益的同一性;不法的包容性
英文关键词：overlap of articles of law;imaginative joiner of offenses;identification of legally protected interests;full evaluation of the content of the illegality
中文摘要：
法条竞合与想象竞合的法律后果存在明显区别,对二者必须进行严格区分。不借助具体案件事实的联结,仅通过对构成要件的解释,就能够肯定两个法条之间存在包容或交叉关系,是法条竞合的形式标准。实质标准之一是法益的同一性,即一个行为侵害了两个以上犯罪的保护法益时,就不可能是法条竞合,而只能认定为想象竞合。实质标准之二是不法的包容性,即在一个行为同时触犯两个法条,只适用其中一个法条就能够充分、全面评价行为的所有不法内容时,两个法条才可能是法条竞合;倘若适用任何一个法条都不能充分、全面评价行为的不法内容,即使符合形式标准与法益的同一性标准,也只能认定为想象竞合。法条竞合与想象竞合的区分并不是固定不变的。
英文摘要：
The legal consequence of the overlap of articles of law is apparently different from that of the imaginative joiner of offenses.Therefore,the two must be strictly distinguished from each other.The formal standard of the overlap of articles of law is that the relationship of inclusion or intersection between two articles of law can be confirmed through the interpretation of constitutive requirements alone,without referring to conjunctions of actual case facts.The first substantial standard is the identification of legally protected interests,according to which where one act infringes legally protected interests involved in more than two crimes,the situation can only be considered as the imaginative joiner of offenses,rather than overlap of articles of law.The second substantial standard is the inclusion of illegality,according to which where one act violates two articles of law simultaneously,only when applying one of these two articles can fully and comprehensively evaluate all of the content of the illegality,can the situation be considered the overlap of articles of law; if applying any one of these two articles cannot fully and comprehensively evaluate all of the content of the illegality,the situation can only be considered as the imaginative joiner of offenses,even if both the formal standard and the identification of the legally protected interests standard are met.The distinctions between the overlap of articles of law and the imaginative joiner of offenses are not fixed.
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