刑法第六十五条规定:“被判处有期徒刑以上刑罚的犯罪分子,刑罚执行完毕或者赦免以后,在五年以内再犯应当判处有期徒刑以上刑罚之罪的,是累犯,应当从重处罚……”然而,在司法实践中,累犯认定遵从“再犯应当判处有期徒刑以上刑罚”的限定因素存在适用困境。一是将“再犯应当判处有期徒刑以上刑罚”作为对法院判决结果的判断,其在时间上较“是否构成累犯”的判断靠后,要将其作为“是否构成累犯”的判断前提, Article 65 of the Criminal Law stipulates that: “Criminals who have been sentenced to more than the fixed-term imprisonment after their execution or pardon have been sentenced to more than a fixed-term imprisonment within five years shall be punished severely ...” However, in the judicial practice, the recidivist finds that there is an applicable dilemma of the limiting factor that complies with the “penalty of more than one sentence for imprisonment”. First, it should judge whether the “re-conviction should be sentenced to more than the fixed-term imprisonment” as a judgment of the court’s judgment, and whether it constitutes a recidivist after “whether it constitutes a recidivist” in time or not. Judgment premise,