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关于继续犯与状态犯存在竞合的解决方案,目前理论上与实务中均存有较大争议,难以达致统一。囿于此现状,立足于不同的情状采用相应之解决方式在本文中得以提倡:在继续犯的不法状态持续过程中,行为人又实施另一个行为符合另一个构成要件,如果是出于一个犯罪意思决定,而且实行行为之间存在至少局部的重叠,成立想象竞合犯,从一重处断;如果不是出于一个犯罪决意,或者实行行为之间没有同一性,应数罪并罚。如果状态犯是为了维持通过继续犯所制造的违法状态时,状态犯与继续犯之间可以成立想象竞合犯;相反,如果状态犯是为了继续犯的实施创造条件,或者状态犯是在继续犯的持续过程中另行起意实施,则应数罪并罚。如果继续犯是状态犯实行行为的组成部分时,状态犯与继续犯之间可以成立想象竞合犯。如果数个继续犯的实行行为全部或者部分发生重叠或同一,可以成立想象竞合犯。如果刑法规范对于犯罪的认定做出了特别的规定,在合理解释法律规定的前提下,应例外的根据刑法的规定进行定罪处刑。
At present, there are still controversies in theory and practice concerning the solution to the problem of the continuation of committing a crime with state prisoners, making it difficult to achieve reunification. In this situation, based on different circumstances, the corresponding solutions are advocated in this article: In the continuous process of continuing the illegal status, the perpetrator and the implementation of another act in line with the other elements, if it is for a crime Meaning decision, and there is at least partial overlap between the acts of conduct, the formation of imagination competing offenders, breaking from a position; if not out of a criminal decision, or there is no identity between the acts of conduct should be punished. If the state offense is to maintain the state of lawlessness created by the continuing convictions, the imagery between the stateful criminal and the continuing convicts may form an integrative confederate; on the contrary, if the state guilty is to create conditions for continued execution, or the state guilty is continuing In the continuous process of committing another intention to implement, you should count the number of crimes. If a continuing criminal is part of a state of criminal conduct, a co-accused prisoner may be established between the state criminal and the continuing criminal. Imagine competing prisoners if the actions of several continuing prisoners overlap or are identical in whole or in part. If the norms of criminal law to make a special provision for the determination of crime, under the premise of a reasonable interpretation of the law, should be an exception according to the provisions of criminal law to convict and punish.