我国通说认为，想象竞合犯是一行为触犯数罪名的情形，应从一重罪论处，但刑法总则没有想象竞合犯的一般规定，学界对相关的理论也缺乏深入广泛的探讨，司法实务中出现了想象竞合犯认定不准确、处罚标准混乱、宣告不明确等问题。此外，对想象竞合犯从一重罪论处还不当地宽宥了行为人所犯的轻罪，不能全面体现行为人的社会危害性。所以现在仍有必要重申想象竞合犯的结构、本质，正确理解罪数评价原则，重新讨论“从一重原则”、“从一重从重原则”、“结合刑原则”、“数罪并罚原则”等处罚原则各自的利弊，以选取最适当的处罚原则，实现罪刑均衡的目标。想象竞合犯结构上的基本特征是“一行为”与“数罪名”。“一行为”是指从自然角度观察下，行为人只实施一个有决意的行为，是想象竞合犯与典型的数罪最显著的不同之处。“数罪名”是指同时符合数个罪名的构成要件，需以符合构成要件的数量为标准，而非行为数量、法益数量等。想象竞合犯尽管只实施一个危害行为，但成立犯罪的数量并非总是与行为的数量相当，如果一行为同时损害数个法益，符合数个罪名的构成要件，其本质上仍应当认定为实质的数罪。如果认为想象竞合犯是一罪，其他法益就得不到有效的保护。评价想象竞合犯应当遵循禁止重复评价原则和全面评价原则。禁止重复评价原则是指禁止对同一行为在对同一法益的同一侵犯过程中给予多个构成要件的评价。对侵犯不同法益的同一行为重复评价，并不违反禁止重复评价的原理，对该行为进行不法评价时，需结合全面评价原则，将该行为全部的不法内涵通过定数罪和并罚体现。“从一重原则”忽视想象竞合犯的数罪特征，放任行为人所犯轻罪，违背了全面评价原则，也不利于发挥判决书的教育功能。“从一重从重原则”对行为人的不法评价比较充足，但它将想象竞合犯界定为实质的一罪，对其施加的刑罚却重于一罪，自相矛盾。“结合刑原则”是上述两原则的改良版，亦不能自圆其说。想象竞合犯应当数罪并罚，如此最符合实质的数罪本质，满足全面评价原则和罪刑均衡原则的要求，实务中操作起来更为便利。数罪并罚也并非将各个罪名的宣告刑机械累加，采取吸收原则和限制加重原则后并不会使刑罚过重。
China's general theory holds that imaginative joinder is a situation in which one act violates several crimes and should be punished as a felony. However, the general provisions of the criminal law do not have the general provisions of imaginative joinder, and the academic circles lack in-depth and extensive discussion on the relevant theories. There are some problems in judicial practice, such as inaccurate identification of imaginative joinder, chaotic punishment standards, unclear declaration and so on. In addition, the treatment of imaginative joinder from a felony also improperly forgives the misdemeanor committed by the perpetrator, which can not fully reflect the social harmfulness of the perpetrator. Therefore, it is necessary to reaffirm the structure and essence of imaginative joinder of offenses, correctly understand the principle of crime number evaluation, and select appropriate punishment principles from "heavier punishment", "heavier punishment on the most serious crime", "combined punishment " and "cumulative punishment", so as to achieve the goal of balance between crime and punishment.The structural characteristics of imaginative joinder of offenses are "one act" and "several charges". "One act" means that the perpetrator only performs one determined act from the perspective of nature. It is the most significant difference between imaginative joinder and ordinary several crimes. "Several crimes" refers to the number of crimes that meet the constituent elements of several crimes at the same time, which should be based on the number of constituent elements, rather than the number of acts and legal interests.Although the imaginative joinder of offenses only carries out one harmful act, the number of crimes may not be equal to the number of acts. An act infringes several legal interests and meets the constituent elements of several crimes. It’s essence should be recognized as a substantial number of crimes. If take it as one crime, other legal interests cannot be effectively protected.Punishment should implement the principle of prohibiting repeated evaluation and the principle of comprehensive evaluation. The principle of prohibiting repeated evaluation means that it is prohibited to evaluate one move several times in the same infringement of the same legal interest. The repeated evaluation of the same act infringing on different legal interests does not violate the principle of prohibiting repeated evaluation. When evaluating the wrongfulness of the act, it is necessary to combine the principle of comprehensive evaluation to reflect all the illegal connotation of the act through fixed number crime and combined punishment."Heavier punishment" ignores the characteristics of several crimes of imaginative joinder and allows the perpetrator to commit minor crimes, which violates the principle of comprehensive evaluation and is not conducive to giving full play to the educational function of the judgment. "Heavier punishment on the most serious crime" has a more comprehensive evaluation of the perpetrator's illegality, but it regards the imaginative joinder as a substantive crime, but the punishment is heavier than one crime, which is contradictory. The principle of "cumulative punishment" can not be improved. Imaginative joinder of offenses should be punished as several crimes, which is most suitable since the essence should be several crimes, and it meets the requirements of the principle of comprehensive evaluation and the principle of balance between crime and punishment. Besides it is more convenient to operate in practice. The combined punishment for several crimes is not mechanical accumulation of each crime. The adoption of the principle of absorption and the principle of restriction and aggravation will not make the punishment too heavy.
