吓走窃贼占有赃物行为的定性

发布时间：2018-03-04 04:33

本文选题：吓走　切入点：占有赃物　出处：《湘潭大学》2014年硕士论文　论文类型：学位论文

【摘要】：吓走窃贼占有赃物行为,通俗来讲是“黑吃黑”的一种表现,它是指行为人在明知或推知他人是窃贼的情况下,通过语言或者不直接作用于窃贼身体的暴力或非暴力,使窃贼产生畏惧,以排除窃贼对赃物的支配,进而将赃物在事实上处于自己支配的行为。吓走窃贼占有赃物行为应当具有如下特征：行为结构的复合性、行为性质的介入性、行为目的的非法性、行为手段的恐吓性、行为对象的不法性、行为主体的一般性等。对“吓走窃贼占有赃物行为”的定性。理论界观点纷呈,并无统一的认识,主要有敲诈勒索罪说、盗窃罪说、诈骗罪说、无罪说等。敲诈勒索罪说将行为人实施的吓唬行为视为一种威胁,随后的占有赃物则是强索财物的表现。盗窃罪说则认为,赃物并非真正意义上的遗弃物,行为人明知此情况而故意非法占有,该占有行为是原来盗窃行为所造成的不法状态的继续。诈骗罪说认为行为人使用的诈唬手段即是诈骗罪的欺骗手段,窃贼放弃赃物是陷于错误认识所致。无罪说则认为行为人取得的财物可以看成不当得利。吓走窃贼占有赃物行为在盗窃实行过程中吓走窃贼占有赃物行为和盗窃实行终了吓走窃贼占有赃物行为两种类型。对于前者,盗窃尚处于未遂状态,行为人吓走窃贼占有赃物行为是对窃贼盗窃行为的介入,并且阻断了窃贼盗窃行为和被害人财物损失之间的因果联系,根据介入因素理论和继任犯理论,此类型的吓走窃贼占有赃物行为应当成立盗窃罪。对于后者,因盗窃已然既遂,但赃物并非无主物,刑法对不具有本权根据的不法占有仍然保护,故行为人吓走窃贼占有赃物实际上利用了其“吓走”行为对窃贼所造成的心理恐惧,应成立敲诈勒索罪。
[Abstract]:The act of deterring a thief from possession of stolen property is, in general, a manifestation of "black eating black". It refers to the violent or non-violent act of the perpetrator who, knowing or inferring that another person is a thief, through words or without directly acting on the body of the thief, The behavior of deterring the thief from dominating the stolen goods, and then putting the stolen goods at his own disposal in fact, should have the following characteristics: the compounding of the behavior structure and the interposition of the nature of the behavior. The illegality of the purpose of the act, the intimidation of the means of conduct, the illegality of the object of the act, the generality of the subject of the act, etc. There are mainly the crime of extortion, the crime of theft, the crime of fraud, the theory of innocence, etc. The theory of extortion regards the act of bluffing carried out by the perpetrator as a threat, and the subsequent possession of stolen property is the manifestation of a strong demand for property. The theory of larceny believes that, Stolen goods are not abandoned in the true sense, and the perpetrator knowingly and unlawfully possesses them, The possession is a continuation of the illegal state caused by the original theft. A thief who gives up stolen goods is the result of a misconception. The innocence theory holds that the property obtained by the perpetrator can be regarded as improper enrichment. The act of deterring the thief from possessing the stolen property in the course of theft and theft. There are two types of acts of deterring thieves from possessing stolen goods. For the former, Theft is still in the state of attempted theft. The behavior of the perpetrator who frightens the thief to possess the stolen property is the intervention of the theft, and the causal link between the theft and the property loss of the victim is blocked. According to the theory of intervention factors and the theory of successor offense, the behavior of theft is still in the state of attempt. This type of act of deterring thieves from possessing stolen property should be established as a crime of theft. For the latter, the theft has already been accomplished, but the stolen property is not without subject, and the criminal law still protects the illegal possession which does not have the basis of this right. Therefore, the perpetrator frightens the thief from possession of the stolen goods and actually makes use of the psychological fear caused by his "scare away" behavior to the thief, so the crime of extortion should be established.
【学位授予单位】：湘潭大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3

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