事后抢劫罪研究
发布时间：2018-07-17 02:45
【摘要】：事后抢劫罪是法律拟制的抢劫罪,在我国刑法第269条中规定。其特点在于事后抢劫罪属于转化型抢劫罪,也属于抢劫罪,具备抢劫罪的实质。由于刑法条文并未明确界定事后抢劫罪的具体行为模式,且有关司法解释具有矛盾和冲突,因此在司法实践中出现了很多难题,理论界对此有着广泛的讨论,值得对事后抢劫罪进行深入探究。本文站在实质刑法解释的角度,通过比较分析方法,案例分析方法和文献资料分析方法等,对事后抢劫罪在司法实践中出现的问题进行分析,并给出本文观点,希望对事后抢劫罪的研究有所裨益。本文除了导言外,共分为四个部分,第一个部分对事后抢劫罪的基本概念和特点进行了辨析,从而引出本文要探讨的几个问题。第二个部分对事后抢劫罪基本构成要件进行了分析。首先关于事后抢劫罪的前提犯罪,本文认为前提犯罪中的“盗窃、诈骗和抢夺罪”是行为而不是罪名,事后抢劫罪并不必然要求行为达到了数额较大的标准。即使没有达到数额较大标准,但具有其他符合前提犯罪中构成要件的行为,而后又符合刑法第269条规定的构成要件,仍然能构成事后抢劫罪。事后抢劫罪中前提犯罪的未完成形态同样能进行转化,符合事后抢劫的前提。其次事后抢劫罪的主体是包含相对刑事责任年龄人的,原因是事后抢劫罪的实质是抢劫罪,而抢劫罪的主体是包含相对刑事责任年龄人的。再次事后抢劫罪的客观要件中“当场”是指在前提犯罪完成后紧密而连续的当场,具有时间和空间的双重要求,而事后抢劫罪中的“暴力”不仅仅是针对行为人的暴力,而且包括了对见义勇为者实施暴力。最后关于事后抢劫罪中前提犯罪所侵犯的法益进行了分析,通过对欧美法和德国法中有关法律和学者观点进行了比较分析,重点探讨了这些观点对我国立法和司法实践的启示。事后抢劫罪所侵犯的法益不仅仅包括财物,还包括财产性利益。第三部分对事后抢劫罪的认定标准进行界定,在具体的案例中对事后抢劫罪的罪与非罪,成立此罪与彼罪进行了分析,具体针对几个疑难问题进行了分析。第四个部分针对事后抢劫罪的既遂与未遂问题进行了分析。本文认为事后抢劫罪有既遂与未遂的形态。通过从总则规定的既遂规定和法律拟制的角度分析,通过对抢劫罪实质侵害的法益进行探讨,赞同事后抢劫罪的既遂形态应当采用双标准,一方面是既遂要求完成侵犯人身性或财产性的要求,另一方面是对没有取得财务也没有造成人身伤害,社会危害性不大的行为不做既遂处理。
[Abstract]:The crime of robbery after the event is a legally fictitious crime of robbery, which is stipulated in Article 269 of the Criminal Law of our country. Its characteristic is that the crime of robbery after the event belongs to the transformed crime of robbery and also belongs to the crime of robbery, which has the essence of the crime of robbery. Because the articles of the criminal law have not clearly defined the specific behavior pattern of the crime of robbery after the event, and there are contradictions and conflicts in the judicial interpretation, there are many difficulties in the judicial practice, which has been widely discussed in the theoretical circle. It is worth exploring the crime of robbery after the event. From the angle of substantive criminal law interpretation, this paper analyzes the problems of robbery after the event in judicial practice through comparative analysis method, case analysis method and literature analysis method, and gives the point of view of this article. It is hoped that it will be beneficial to the study of the crime of robbery after the event. In addition to the introduction, this paper is divided into four parts. The first part discriminates the basic concepts and characteristics of the crime of robbery after the event, leading to several problems to be discussed in this paper. The second part analyzes the basic elements of the crime of robbery after the event. First of all, about the premise crime of the crime of robbery after the event, this article thinks that the crime of theft, fraud and snatch in the crime of premise crime is an act rather than a charge, and the crime of robbery after the event does not necessarily require the act to reach the standard of a large amount. Even if it does not reach the standard of large amount, it can still constitute the crime of robbery after the fact that it has other acts which accord with the constitutive elements of the premise crime, and then meets the constitutive requirements stipulated in Article 269 of the Criminal Law. The incomplete form of the premise crime in the crime of robbery after the event can also be transformed, which accords with the premise of the robbery after the event. Secondly, the main body of the crime of robbery after the event contains the person of relative age of criminal responsibility, the reason is that the essence of the crime of afterwards robbery is the crime of robbery, and the subject of the crime of robbery contains the person of the age of relative criminal responsibility. In the objective elements of the crime of robbery after the event, "on the spot" refers to the close and continuous demand of time and space on the spot after the completion of the premise crime, and the "violence" in the crime of robbery after the event is not only aimed at the perpetrator, And it includes violence against the righteous. Finally, the author analyzes the legal interests infringed by the premise crime in the crime of robbery after the event, compares the views of the relevant laws and scholars in the European and American law and the German law, and probes into the enlightenment of these views to the legislation and judicial practice of our country. The legal interests infringed by the crime of robbery after the event not only include property, but also property interests. The third part defines the standard of the crime of robbery after the event, analyzes the crime and the crime of robbery after the event in specific cases, and analyzes several difficult problems. The fourth part analyzes the problem of accomplished and attempted robbery after the event. This article holds that the crime of robbery after the event has the forms of accomplished and attempted. Based on the analysis of the accomplished provisions and the legal fiction of the general principles, and through the discussion of the legal interests of the substantial infringement of robbery, it is agreed that the accomplished form of the crime of robbery after the event should adopt double standards. On the one hand, it is necessary to complete the requirement of infringing upon the person or property, on the other hand, it does not deal with the behavior which has not obtained the financial affairs nor caused the personal injury, which is not harmful to the society.
【学位授予单位】：广东外语外贸大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3
本文编号：2128667
[Abstract]:The crime of robbery after the event is a legally fictitious crime of robbery, which is stipulated in Article 269 of the Criminal Law of our country. Its characteristic is that the crime of robbery after the event belongs to the transformed crime of robbery and also belongs to the crime of robbery, which has the essence of the crime of robbery. Because the articles of the criminal law have not clearly defined the specific behavior pattern of the crime of robbery after the event, and there are contradictions and conflicts in the judicial interpretation, there are many difficulties in the judicial practice, which has been widely discussed in the theoretical circle. It is worth exploring the crime of robbery after the event. From the angle of substantive criminal law interpretation, this paper analyzes the problems of robbery after the event in judicial practice through comparative analysis method, case analysis method and literature analysis method, and gives the point of view of this article. It is hoped that it will be beneficial to the study of the crime of robbery after the event. In addition to the introduction, this paper is divided into four parts. The first part discriminates the basic concepts and characteristics of the crime of robbery after the event, leading to several problems to be discussed in this paper. The second part analyzes the basic elements of the crime of robbery after the event. First of all, about the premise crime of the crime of robbery after the event, this article thinks that the crime of theft, fraud and snatch in the crime of premise crime is an act rather than a charge, and the crime of robbery after the event does not necessarily require the act to reach the standard of a large amount. Even if it does not reach the standard of large amount, it can still constitute the crime of robbery after the fact that it has other acts which accord with the constitutive elements of the premise crime, and then meets the constitutive requirements stipulated in Article 269 of the Criminal Law. The incomplete form of the premise crime in the crime of robbery after the event can also be transformed, which accords with the premise of the robbery after the event. Secondly, the main body of the crime of robbery after the event contains the person of relative age of criminal responsibility, the reason is that the essence of the crime of afterwards robbery is the crime of robbery, and the subject of the crime of robbery contains the person of the age of relative criminal responsibility. In the objective elements of the crime of robbery after the event, "on the spot" refers to the close and continuous demand of time and space on the spot after the completion of the premise crime, and the "violence" in the crime of robbery after the event is not only aimed at the perpetrator, And it includes violence against the righteous. Finally, the author analyzes the legal interests infringed by the premise crime in the crime of robbery after the event, compares the views of the relevant laws and scholars in the European and American law and the German law, and probes into the enlightenment of these views to the legislation and judicial practice of our country. The legal interests infringed by the crime of robbery after the event not only include property, but also property interests. The third part defines the standard of the crime of robbery after the event, analyzes the crime and the crime of robbery after the event in specific cases, and analyzes several difficult problems. The fourth part analyzes the problem of accomplished and attempted robbery after the event. This article holds that the crime of robbery after the event has the forms of accomplished and attempted. Based on the analysis of the accomplished provisions and the legal fiction of the general principles, and through the discussion of the legal interests of the substantial infringement of robbery, it is agreed that the accomplished form of the crime of robbery after the event should adopt double standards. On the one hand, it is necessary to complete the requirement of infringing upon the person or property, on the other hand, it does not deal with the behavior which has not obtained the financial affairs nor caused the personal injury, which is not harmful to the society.
【学位授予单位】：广东外语外贸大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3
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