论刑法中的“携带凶器盗窃”

发布时间：2018-06-19 12:04

本文选题：凶器 + 携带　；参考：《湘潭大学》2014年硕士论文

【摘要】：“携带凶器盗窃”是《刑法修正案（八）》新增的盗窃类型，立法规定和司法解释对此行为无太多详尽说明，因此引发学界和实务界的热议。“携带凶器盗窃”在现实生活中时有发生，《刑法修正案（八）》出台之前“携带凶器盗窃”若未达到数额较大不会对其定罪处罚，由于其行为既侵犯财产权又对人身安全造成威胁，《刑法修正案（八）》突破以往只将盗窃数额较大作为定罪处罚的模式，直接将“携带凶器盗窃”与“入户盗窃”、“扒窃”单独入罪。由于刑法规定的特殊性，对“携带凶器盗窃”的行为需要做出科学合理的解释，以便法律的公正施行。所谓“凶器”是指行为人为准备盗窃所携带在身上的，具有一定杀伤力，能够使人产生威胁感的物品。“凶器”可以分为自然物品和人工物品。自然物品要成为“凶器”的范畴必须是满足一定的人工性和制造性的无生物，而不拘泥于物品存在的形态。人工物品无论其以何种形式存在，都应遵循一般判断标准。所谓“携带”是指在实施盗窃的过程中将“凶器”置于行为人现实的支配之下，能够有效使用的行为。其含义可分别从主体、主观与客观方面进行探讨。从主体上认定“携带”，认为仅仅出现了某一行为人携带了凶器进行盗窃，其他共同实行行为人没有携带凶器也对携带者的行为完全不知晓时，不应认为成立“携带凶器盗窃”。主观上认定“携带”，指行为人携带凶器是自己所意愿所计划的事情，行为人能够正确无误地认识到自己身上所携带的凶器。且行为人携带凶器的目的是希望所携带的凶器能够达到排除、阻止他人的反抗，从而确保盗窃的顺利进行，以便达到非法占有财物的目的。客观方面，从时间上认定“携带”，单纯处于预备阶段而在实行之前就放弃了“凶器”的不宜认定为“携带凶器盗窃”，但如果处于预备阶段而在实行过程中放弃“携带”的，依然构成“携带凶器盗窃”。从空间上认定“携带”，只要在盗窃的过程中有“携带”行为即可，，是从外界带入现场还是就地获得的在所不论。从方式上认定“携带”主要包括无意显露型和暗藏凶器型的“携带”。所谓“携带凶器盗窃”是指以非法占有为目的，而携带具有一定杀伤力，能让社会一般人产生威胁感的器具以辅助完成盗窃的行为。并非所有“携带凶器盗窃”的行为都一律入罪，携带凶器未盗取任何财物或所窃数额微小，且无其他严重情节的，不认为是犯罪。“携带凶器盗窃”与“携带凶器抢夺”对法益侵害程度不同，“携带凶器抢夺”中的抢夺行为是行为人当场直接夺取他人紧密占有的财物行为。而“携带凶器盗窃”中的盗窃行为是平和取财的行为。
[Abstract]:"burglary with murder weapon" is a new type of theft in Criminal Law Amendment (8), which has not been explained in detail by legislation and judicial interpretation, so it has aroused heated discussion in academic and practical circles. Theft with a murder weapon occurs from time to time in real life. Before the introduction of the Amendment (VIII) to the Criminal Law, if the amount of theft with the murder weapon was not reached, it would not be convicted and punished. As its behavior not only infringes property rights but also poses a threat to personal safety, the Criminal Law Amendment (8) breaks through the previous pattern of only taking a larger amount of theft as a conviction and punishment, and directly commits "burglary with murder weapons" and "burglary into the house". Pickpocketing is a separate offence. Due to the particularity of the criminal law, it is necessary to make a scientific and reasonable explanation for the act of "armed theft with murder weapon" in order to carry out the law fairly. The so-called "murder weapon" refers to the goods that the perpetrator carries on his body in preparation for theft, which has a certain killing power and can make people feel threatened. The weapon can be divided into natural objects and artificial objects. If natural objects are to be "weapons of murder", they must satisfy certain artificial and manufacturing nature, and should not be confined to the form of existence of objects. Artificial objects, no matter what form they exist, should follow the general judgment standard. The so-called "carrying" refers to the behavior in which the "murder weapon" is placed under the actual control of the perpetrator and can be effectively used in the process of theft. Its meaning can be discussed from subjective, subjective and objective aspects. When the subject determines that "carrying", only one actor carries the weapon for theft, and the other joint perpetrators do not carry the weapon, they do not know the behavior of the carrier at all. It should not be considered as "armed theft". Subjective determination of "carrying" means that the perpetrator carries a weapon which is planned by his will, and the perpetrator can correctly recognize the weapon he carries on his body. And the purpose of the perpetrator carrying the weapon is to hope that the weapon carried with him can be excluded, prevent the resistance of others, thus ensure the smooth progress of theft, in order to achieve the purpose of illegal possession of property. Objectively speaking, when "carrying" is determined in time, those who are simply in the preparatory stage and give up "murder weapon" before implementation should not be regarded as "carrying the murder weapon theft", but if they are in the preparatory stage and give up "carrying" in the process of implementation, It still constitutes "burglary with the murder weapon". As long as there is "carrying" behavior in the process of theft, whether it is brought into the scene or obtained locally from outside. The mode of "carrying" mainly includes unintentional exposure and concealed murder weapon. The so-called "carrying murder weapon theft" refers to the act of accomplishing theft with the purpose of illegal possession, and carrying with it a certain degree of killing power, which can make the general public have a sense of threat. Not all acts of "armed theft" are criminalized. It is not considered a crime to carry a weapon without stealing any property or a small amount of money stolen and without any other serious circumstances. There is a difference between "armed theft" and "robbery with murder weapon" to the degree of infringement on legal interests. The act of robbery in "robbery with murder weapon" is the act of directly seizing the property in close possession of the other person on the spot. And the theft in "theft with murder weapon" is the behavior of taking money peacefully.
【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】：D924.35

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