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情节加重犯是指刑法所规定的,在基本犯基础上,因具备一定情节而加重其处罚(即法定刑升格)的犯罪类型,情节加重犯整体上可以分为加重构成和量刑情节两类。具体而言,如果加重情节的规定使得其成为不同于基本犯的违法行为类型,则此类情节加重犯是基本犯的加重构成,加重构成具有未遂形态,对其应先适用加重的法定刑,再适用刑法总则关于未遂犯从轻、减轻的处罚规定;如果加重情节的设置并不改变违法行为类型,则该类情节加重犯实质上属于单纯的量刑情节,其并不存在未遂形态,即只有客观上具备该情节时方可适用加重的法定刑,反之只能科处基本犯的法定刑。对于刑法规定的从重处罚情节,亦应照此原理处理。
The crime of aggravating circumstances refers to the type of crime stipulated in the criminal law. On the basis of basic offender, because of having certain circumstances, aggravating the type of crime (that is, escalation of legal penalty), the aggravating offender as a whole can be divided into two categories: aggravating constitution and sentencing circumstances. Specifically, if the aggravating circumstances make it a type of offense different from the basic one, the aggravating circumstances of such a circumstance are aggravating elements of basic criminals, aggravating the statutory sentence which has an unfulfilled form and should be applied first, And then apply the general provisions of criminal law on attempted offenses lighter, lighter penalties; if the aggravating circumstances set does not change the type of offense, then the episode aggravating offense is essentially a purely sentencing circumstances, there is no attempt to shape, that is, only Objectively, it is only applicable to the heavier statutory sentence when the episode is provided, but only to the basic sentence of the basic criminal at the section. The penalties laid down in the criminal law should also be handled according to this principle.