华侨大学学报（哲学社会科学版）Issue(6)：128-139,12.
法条竞合的实质判断标准及其运用研究
Study on the Substantive Judgment Criteria for Statutory Concurrence and Their Applications
摘要
Abstract
Both statutory concurrence and imaginative concurrence involve scenarios where the subject is identical,the act is identical,and the criminal intent is consistent.Consequently,the substantive distinction between the two cannot be made based solely on the elements of the subject,the objective aspects,or the subjective aspects themselves.The essence of crime lies in the violation of legal interests.In instances of concurrence of legal provisions,applying one legal provision is sufficient to comprehensively and fully assess all the legal interests violated by the crime.When a criminal act infringes up-on multiple legal interests or an overarching legal interest,if the legal interest protected by one offense can encompass the legal interest protected by another offense,applying the former offense is sufficient for a comprehensive and full assessment of all the violated legal interests;statutory concurrence exists between them.The provision protecting the multiple or over-arching legal interest is the specific provision,while the provision protecting the encompassed legal interest is the general provision.When a criminal act violates only a single legal interest,and the legal interests protected by two offenses are i-dentical,applying either offense can comprehensively and fully assess that legal interest;statutory concurrence also exists in this situation.Here,the provision containing a distinct form of the subject element,objective element,or subjective ele-ment is the specific provision,while the other provision is the general provision.Therefore,the inclusiveness or identity of the legal interests constitutes the substantive criterion for determining the statutory concurrence.Where the legal interests are identical,the elements concerning the subject,the objective aspects,and the subjective aspects serve as the criteria for distinguishing the specific provision from the general provision.关键词
法条竞合/实质判断标准/法益包容性/法益相同性Key words
statutory concurrence/substantive judgment criteria/legal interest inclusion/legal interest sameness分类
社会科学引用本文复制引用
文姬,黄婷..法条竞合的实质判断标准及其运用研究[J].华侨大学学报（哲学社会科学版）,2025,(6):128-139,12.基金项目
福建省社会科学基金省法学会特别委托项目"预防未成年人违法犯罪研究以临界预防为视角"(FJ2024TWFX005) （FJ2024TWFX005）
