摘要： 我国司法实践对商刑交叉案件的处理存在同级法院对类案、上下级法院对同案适用不同程序处理规则的现象,这不仅影响司法机关的程序开展,还可能导致商事犯罪的错误界定和商主体的权益丧失。根据民商事案件和刑事案件的相互影响关系,商刑交叉案件可以分为刑事案件影响民商事案件定性的竞合型、刑事案件和民商事案件互不影响但有所关联的牵连型和民商事案件影响刑事案件定性的从属型三种类型,应分别适用先刑后商、商刑并行和先商后刑的程序处理规则。竞合型商刑交叉案件需满足行为主体与核心行为同一的“同一事实”要求,不满足双重要求仅在少数构成要素上有所牵连的属于牵连型商刑交叉案件。商刑交叉案件的程序处理规则已在实质上趋于类型化,无需将某一规则原则化处理并设定若干例外情形,避免原则化路径所带来的非公正、非效率、非合理的问题。

关键词: 商刑交叉, 程序处理规则, 先刑后商, 商刑并行, 先商后刑

Abstract: China's judicial practice in dealing with commercial-criminal cross-cutting cases is marked by the phenomenon of different procedural rules being applied by courts at the same level to similar cases, and by courts at higher and lower levels to the same cases, which not only affects the procedures of the judiciary, but may also result in the wrong definition of commercial crime and the loss of rights and interests of the subject of the commercial case.According to the mutual influence of civil and commercial cases and criminal cases, commercial-criminal intersection cases can be divided into three types: competing criminal cases affecting the nature of civil and commercial cases, implicated criminal cases and civil and commercial cases not affecting each other, but related, and subordinate civil and commercial cases affecting the nature of criminal cases.Those cases should apply the procedural rules of criminal before commercial, commercial-criminal in parallel, and commercial before criminal, respectively.Competing commercial-criminal crossover cases need to satisfy the ‘same facts’ requirement that the subject of the act is the same as the core act, and those that do not satisfy the dual requirement but are only implicated in a few constituent elements are implicated commercial-criminal cross-over cases.The procedural rules for commercial-criminal cross-border cases are already substantially typified, and there is no need to be rules-based and set up a number of exceptions to avoid the problems of unfairness, inefficiency and irrationality brought about by the principle-based approach.

Key words: Commercial-criminal Crossover, Procedural Rules, Criminal before Commercial, Parallel Commercial-criminal, Commercial Before criminal