扒窃型盗窃的司法适用问题研究
发布时间：2019-01-09 10:03
【摘要】：《刑法修正案(八)》将扒窃行为新增为盗窃罪的一种独立行为方式予以定罪处罚。《刑法修正案(八)》出台以来,司法实践中已经大量出现扒窃案件定罪处刑标准不统一的现象,直接影响到司法公正。问题主要集中在四点：一是对修正案关于扒窃条文理解不一致；二是对扒窃行为认定标准掌握不一致；三是对扒窃构成犯罪标准掌握不一致；四是对扒窃不构成犯罪标准掌握不一致。2013年4月盗窃罪出台了最新司法解释,上述问题仍未全部得以解决。 本文结合重庆市扒窃案件定罪的司法适用现状,对以上问题进行探讨：一是扒窃行为的认定。首先,扒窃对象包括动产和特殊情形下的不动产附属部分以及财产性利益；随身携带指将财物带在身上或置于现实紧密支配之下。其次,扒窃必须发生在公共场所或者公共交通工具上。公共场所指向全部或部分社会成员开放,能够自由往来并进行社会活动,具有不同程度的开放性与人员复杂性的场所；公共交通工具指从事旅客运输的各种公共汽车、大中型出租车、火车、船只、飞机等正在运营中的交通工具。最后,特定方式的公开窃取也可认定为扒窃。二是扒窃行为定罪问题,一般情况下应以实施完成即定罪,无需法益受到实际损害。三是结合刑法总则第13条“但书”规定,参考2013年4月《关于办理盗窃刑事案件适用法律若干问题的解释》中对盗窃公私财物数额较大可以不起诉或免予刑事处罚的情形规定,对下列扒窃行为可不认定为犯罪：扒窃家庭成员或近亲属财物,获得谅解的；年满75周岁的人,因维持最低限度之生活需要,初次扒窃且扒窃金额较小的；已满16周岁未满18周岁的未成年人,偶以价值较低的财物为目标实施扒窃的；被胁迫实施扒窃,没有窃得财物、没有分得赃物或获赃较少的；以未达数额较大的财物为扒窃目标的未遂犯；以较低价值财物为扒窃目标,窃得财物后全部退赃、退赔,未造成危害后果(包括案外后果)的。
[Abstract]:The amendment to the Criminal Law (8) added pickpocketing to the crime of larceny as an independent form of conduct to be convicted and punished. [8] since the introduction of the Amendment (VIII) of the Criminal Law, In judicial practice, the phenomenon that the standard of conviction and punishment of pickpocketing cases is not uniform has a direct impact on judicial justice. The problems mainly focus on four points: the first is the inconsistent understanding of the provisions of the amendment on pickpocketing; the second is the inconsistent understanding of the standard of identification of pickpocketing; the third is the inconsistency of the criminal standard of pickpocketing; Fourth, the standard of pickpocketing does not constitute a crime is inconsistent. In April 2013, the latest judicial explanation was issued for theft, and the above problems have not been completely solved. Based on the current situation of judicial application in the conviction of pickpocketing cases in Chongqing, this paper probes into the above problems: first, the identification of pickpocketing. First of all, pickpocketing includes movable property and real estate in special circumstances, as well as property interests; carry-on refers to carrying property on the body or under the tight control of reality. Secondly, pickpocketing must occur in public places or on public transport. Public places are open to all or some members of the society, can freely travel and carry out social activities, and have varying degrees of openness and complexity of personnel; Public transport means all kinds of buses, large and medium-sized taxis, trains, ships, planes, etc that are in operation for passenger transport. Finally, a certain form of public theft can also be identified as pickpocketing. The other is the conviction of pickpocketing, which should be completed under normal circumstances, without actual harm to the legal interests. Third, in conjunction with the proviso of Article 13 of the General provisions of the Criminal Law, referring to the explanation of certain issues concerning the applicable Law in handling Criminal cases of Theft in April 2013, it is stipulated that the large amount of stolen public and private property may not be prosecuted or exempted from criminal punishment. The following acts of pickpocketing may not be considered a crime: pickpocketing of family members or close relatives of property, the understanding; A person who has reached the age of 75, for the purpose of maintaining a minimum standard of living, has a relatively small amount of pickpocketing for the first time; a minor who has reached the age of 16 and under the age of 18 may carry out pickpocketing with the object of property of lower value; Those who have been coerced to carry out pickpocketing, have not obtained property, have not been given stolen goods or have received less stolen goods, and have not attempted to commit pickpocketing with the object of pickpocketing not reaching a large amount of property; Taking a lower value property as the target of pickpocketing, if the stolen property is returned to the stolen goods and compensations, and no harmful consequences (including the consequences outside the case) are caused.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D924;D926
本文编号：2405474
[Abstract]:The amendment to the Criminal Law (8) added pickpocketing to the crime of larceny as an independent form of conduct to be convicted and punished. [8] since the introduction of the Amendment (VIII) of the Criminal Law, In judicial practice, the phenomenon that the standard of conviction and punishment of pickpocketing cases is not uniform has a direct impact on judicial justice. The problems mainly focus on four points: the first is the inconsistent understanding of the provisions of the amendment on pickpocketing; the second is the inconsistent understanding of the standard of identification of pickpocketing; the third is the inconsistency of the criminal standard of pickpocketing; Fourth, the standard of pickpocketing does not constitute a crime is inconsistent. In April 2013, the latest judicial explanation was issued for theft, and the above problems have not been completely solved. Based on the current situation of judicial application in the conviction of pickpocketing cases in Chongqing, this paper probes into the above problems: first, the identification of pickpocketing. First of all, pickpocketing includes movable property and real estate in special circumstances, as well as property interests; carry-on refers to carrying property on the body or under the tight control of reality. Secondly, pickpocketing must occur in public places or on public transport. Public places are open to all or some members of the society, can freely travel and carry out social activities, and have varying degrees of openness and complexity of personnel; Public transport means all kinds of buses, large and medium-sized taxis, trains, ships, planes, etc that are in operation for passenger transport. Finally, a certain form of public theft can also be identified as pickpocketing. The other is the conviction of pickpocketing, which should be completed under normal circumstances, without actual harm to the legal interests. Third, in conjunction with the proviso of Article 13 of the General provisions of the Criminal Law, referring to the explanation of certain issues concerning the applicable Law in handling Criminal cases of Theft in April 2013, it is stipulated that the large amount of stolen public and private property may not be prosecuted or exempted from criminal punishment. The following acts of pickpocketing may not be considered a crime: pickpocketing of family members or close relatives of property, the understanding; A person who has reached the age of 75, for the purpose of maintaining a minimum standard of living, has a relatively small amount of pickpocketing for the first time; a minor who has reached the age of 16 and under the age of 18 may carry out pickpocketing with the object of property of lower value; Those who have been coerced to carry out pickpocketing, have not obtained property, have not been given stolen goods or have received less stolen goods, and have not attempted to commit pickpocketing with the object of pickpocketing not reaching a large amount of property; Taking a lower value property as the target of pickpocketing, if the stolen property is returned to the stolen goods and compensations, and no harmful consequences (including the consequences outside the case) are caused.
【学位授予单位】：大连海事大学
【学位级别】：硕士
【学位授予年份】：2013
【分类号】：D924;D926
【参考文献】
中国期刊全文数据库 前10条
1 许海波;还犯罪既遂以本来面目——对犯罪既遂标准通说的质疑[J];东岳论丛;2004年05期
2 张明楷;;盗窃与抢夺的界限[J];法学家;2006年02期
3 陈兴良;相似与区别:刑法用语的解释学分析[J];法学;2000年05期
4 赵栩;;关于“新”盗窃罪罪状的理解与适用[J];法制与社会;2011年28期
5 孙璐;;关于《刑法修正案(八)》中扒窃入罪的几点思考[J];法制与社会;2012年09期
6 杨忠民;王凯;;修正后的盗窃罪司法适用问题探讨[J];中国人民公安大学学报(社会科学版);2011年05期
7 陈志恒;;盗窃罪司法认定的几个问题——《刑法修正案(八)》的法律适用总结[J];法制与社会;2011年29期
8 章其彦;伍光辉;;对刑法中扒窃行为的法理分析——以《刑法修正案(八)》为视角[J];河北法学;2012年05期
9 李翔;;新型盗窃罪的司法适用路径[J];华东政法大学学报;2011年05期
10 吴加明;;《刑法修正案(八)》中“扒窃”的司法实践认定[J];中国检察官;2011年14期
，本文编号：2405474
本文链接：https://www.wllwen.com/falvlunwen/gongjianfalunwen/2405474.html
