论文部分内容阅读
除刑法总则有关预备犯和未遂犯处罚的规定属准用规定外,在我国刑法分则中不存在准用规定。但是,我国司法实务界和刑法学界却将设立准用规定的逻辑适用到对拟制规定的理解中,并且将拟制规定与准用规定等同视之,以致相关的拟制规定在适用时出现相当混乱的局面。准用规定通常是根据处罚的需要选择和解释犯罪构成,其设立逻辑是“罪当其罚”。在罪刑法定原则之下,必须对准用规定与拟制规定做准确的区分。为确保拟制规定的适用符合现代刑事法治倡导的“罚当其罪”的设立逻辑,在对拟制规定之罪量刑时可以借鉴设立准用规定的逻辑并根据违法和责任程度的差异比照基本罪的量刑从轻或减轻处罚。
In addition to the General Provisions of Criminal Law on the provisions of preparatory offender and attempted offenses are allowed to use the provisions of the provisions of criminal law in our country does not exist quasi-provisions. However, the judicial practice circles and the criminal law scholars in our country apply the logic of establishing quasi-application rules to the understanding of quasi-system rules and treat the quasi-system rules in the same way as the quasi-application rules, so that the relevant fictional rules appear when applicable Quite messy situation. Quasi-provisions are usually based on the needs of the punishment to choose and explain the composition of the crime, the establishment of logic is “guilty of its penalty ”. Under the principle of legality of crimes and penalties, the exact distinction between quasi-use regulations and proposed ones must be made. In order to ensure that the application of fictional provisions conforms to the established logic of “guilty of crimes” advocated by modern criminal law, the logic of establishing quasi-application rules can be borrowed from the sentencing of fictionalized crimes and based on the differences in the degree of illegality and responsibility Punishment should be lighter or mitigated than basic crimes.