法定刑升格条件的类型化研究

A Typological Study on the Conditions for Upgrading Statutory Sentences

摘要: 法定刑升格条件的性质界定对于犯罪形态的认定与量刑的确定具有重要意义，对其性质的认定有“加重构成说”与“区分说”之争。相较而言，“区分说”更具合理性。刑法学界在加重构成与量刑规则的区分标准上存在“行为类型标准说”、“违法性标准说”与“构成要件品质标准说”等学说分歧。“构成要件品质标准说”立足于构成要件的“三大机能”确定某一法定刑升格条件是否属于加重构成，相较其他两种学说而言更为细致。本文在坚持“构成要件品质标准说”的基础上，认为法定刑升格条件应当区分为加重构成与量刑规则，加重构成又应细分为“罪体加重构成”与“罪量加重构成”。同时，本文对“构成要件品质标准说”作了修正与完善，进一步指出“数额(特别)巨大”作为“罪量加重构成”亦能成立犯罪未遂；至于“多次”则因不能作为故意的认识内容，应当视为量刑规则。

Abstract: The definition of the nature of the conditions for upgrading the statutory sentence is of great significance to the determination of the form of crime and the determination of the sentence, and there is a dispute between the “aggravated composition theory” and the “distinction theory” in determining its nature. In contrast, the “distinction theory” is more reasonable. There are doctrinal differences in the standards for distinguishing between aggravating composition and sentencing rules, such as “the standard of behavior type”, the “standard of illegality” and the “theory of quality of constituent elements”. The “constituent element quality standard theory” is based on the “three major functions” of constituent elements to determine whether a statutory sentence upgrade condition is an aggravating composition, which is more detailed than the other two theories. On the basis of adhering to the “quality standard of constituent elements”, this article argues that the conditions for upgrading the statutory sentence should be divided into aggravated composition and sentencing rules, and the aggravated composition should be subdivided into “aggravated composition of the criminal body” and “aggravated composition of the criminal amount”. At the same time, this article amends and improves the “quality standard of constituent elements”, and further points out that “the amount (specially) is huge” as the “aggravated amount of crime” can also establish an attempted crime; as for “multiple times”, because it cannot be regarded as the content of intentional knowledge, it should be regarded as a sentencing rule.