论文部分内容阅读
选择确定与罪疑唯轻、法条竞合、无罪推定有着本质的区别,选择确定的适用前提是罪名间具有法定的择一关系。选择确定规则的功能有两项:一是使裁判者在遵守罪刑法定的前提下根据刑法规范对犯罪事实进行充分评价;二是贯彻刑法保障刑事被告正当权益的功能。如果罪名间不具有犯罪阶层的包容关系,且当罪名间具有“法伦理上和心理上的可比较性”及“不法核心的同一性”时,裁判者有权根据选择确定理论作出有罪判决。选择确定规则在刑事程序法也具有重要意义,如果犯罪行为涉及罪名的构成要件间属选择确定关系,应当允许公诉方进行选择起诉。
There is an essential difference between the choice and the determination of suspicion, the law of competition, and the presumption of innocence. The prerequisite for the choice and determination is that there is a legal relationship between crimes. There are two functions of choosing a certain rule: one is to make the referee adequately evaluate the criminal facts according to the norms of criminal law on the premise of abiding by the statutory rules; the other is to carry out the criminal law’s function of guaranteeing the legitimate rights and interests of criminal defendants. If the guilt does not include the inclusive relationship of the criminal class, and when the guilt has “legal and psychological comparability” and “illegitimate core identity”, the judge has the right to determine the theory according to the choice Make a guilty verdict The choice of rules of determination is also of great significance in the criminal procedural law. If the elements of the crimes involved in the commission of crime are of choice to determine the relationship, the prosecutor should be allowed to choose to prosecute.