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刑法理论上有关法条竞合的各种概念界定具有不合理之处,其应为刑法规范的规范确定理论,目的在于进一步明确刑法所规定的某一具体犯罪的构成要件。相对于真正竞合,法条竞合是假性竞合,其实质是法条排除,本质上并无复数构成要件被实现。在中外刑法理论上,关于法条竞合的定位看法不一,但是不论是法条形态论、罪数形态论还是折中论都有所偏颇。基于对法条竞合的概念、本质的解读,法条竞合应当定位于法律解释论,其理论价值就是探讨法条排除的方法和规则。
The definition of various conceptions about the competition of law in criminal law theory is unreasonable. It should be the normative theory of criminal law norms, and the purpose is to further clarify the constitutional requirements of a specific crime stipulated in criminal law. Relative to the real competing, law competing is a false competing, its essence is the rule of law excluded, in essence, no complex elements to be achieved. In the theory of criminal law both at home and abroad, the opinions on the co-opetition of laws are different, but they are biased in terms of the law of morphology, the theory of the number of crimes, and the compromise theory. Based on the concept of competing for articles, the essence of interpretation, the law of articles should be located in the legal interpretation of theory, its theoretical value is to explore the method of rule exclusion and rules.