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在量刑情节冲突的情况下如何选择适用法定刑,一直是刑法学中的一个难题,学者们以往对此研究不多且歧见纷纭,而这一问题又对司法实践影响甚巨,所以有进一步探讨的必要。 一、量刑情节冲突的表征 究竟什么是情节冲突,这是首先需要明确的。为此,有必要回顾并检视一下刑法学界对情节冲突表现形式的看法。 我国多数学者在讨论量刑情节冲突时未对其概念进行界定,而采用列举的方式来讨论问题。有的学者提出,量刑情节的冲突有以下5种表现形式:(1)影响量刑作用大的情节与影响量刑作用小的情节之冲突;(2)确然(应当)情节、或然(可以)情节、放任(酌定)情节之冲突;(3)适应量刑公正性的情节与适应量刑目的性的情节之冲突;(4)适应个别预防目的的情节与适应一般预防目的的情节之冲突;(5)罪中情节与罪前情节、罪后情节的冲突。还有的学者则不太同意这种区分,认为情节冲突除了表现为应当情节与可以情节之间的冲突
How to choose to apply the statutory punishment in the case of conflict of sentencing circumstances has always been a difficult problem in the criminal law jurisprudence. Scholars have not done much research and divergent views on this in the past, and this issue has great influence on judicial practice. Therefore, it is further discussed Necessary. First, the characteristics of the sentencing plot conflict What is the plot of conflict, which is the first need to be clear. For this reason, it is necessary to review and examine the viewpoints of criminal law scholars on the manifestations of plot conflicts. Most scholars in our country did not define the concept when discussing the conflict of sentencing, but enumerated the way to discuss the issue. Some scholars have suggested that there are five kinds of manifestations of the conflict in the sentencing circumstances: (1) the conflict between the plot affecting the sentencing effect and the plot influencing the sentencing effect; (2) (3) Conflict between the plot adapted to the impartiality of sentencing and the plot aimed at adapting to the sentencing; (4) Conflict between plot adapted to individual prevention and plot adapted to general prevention; (3) 5) the plot of the crime and the plot before the crime, the plot after the conflict. Still other scholars disagree with this distinction, believing that the episode conflict is not only manifested in the conflict between the plot that should be available and the plot that may be available