特殊盗窃认定的若干问题研究
发布时间：2018-09-08 12:37
【摘要】：这篇文章着重对入户盗窃、扒窃、携带凶器盗窃和多次盗窃这四种特殊盗窃行为的司法认定过程中的问题进行研究。第一章介绍了四种特殊盗窃行为的概念。以及1979年以来特殊盗窃行为的相关立法变迁。对德国、日本、意大利、匈牙利、美国、英国的特殊盗窃的立法情形作了介绍。第二章介绍了入户盗窃的认定研究。首先“户”具有场所和功能两大特征。“户”除了具有私密性和排他性的同时,还应有家庭生活功能。集体宿舍、无人居住的住宅、酒店宾馆和临时搭建的工棚一般不能认定为“户”,但是封闭性较好,具有家庭生活功能的宅院和在非营业时间的商住一体房,以及临时居住的别墅应当认定为“户”。其次,入户盗窃的“入”应当是具有非法性。最后入户盗窃的既遂标准采取的是“失控说加控制说”。第三章介绍了扒窃的认定研究。首先,文中支持扒窃的实施场所是公共场所,具有的特征是:开放性,时间性和人数不特定性。其次,对犯罪对象进行了解析,文中支持随身携带的财物的随身性是“随时支配范围说”。最后,扒窃既遂标准是“失控说加控制说”。第四章介绍了携带凶器盗窃的认定研究。首先,从凶器的危险性和行为人的主观意志来判定是否为凶器,如少数民族人按照习俗佩戴刀具,人们随身携带的小物件或作案工具不能被认定为凶器。其次,应是在盗窃过程中携带凶器。最后,既遂标准采取的是“失控说加控制说”。第五章介绍了多次盗窃的认定研究。首先,“次”的认定应当具有一个犯罪故意和连续的时间段,还应当结合当时的地点环境。已受行政处罚的盗窃行为也应被计入“次”内。其次,文中多次盗窃的既遂标准采取的是“失控说加控制说”。
[Abstract]:This article focuses on the problems in the judicial identification of four special kinds of theft, namely burglary, pickpocketing, burglary with murder weapon and multiple theft. The first chapter introduces the concept of four special acts of theft. And the special theft since 1979 related legislative changes. The special theft legislation in Germany, Japan, Italy, Hungary, the United States and the United Kingdom is introduced. The second chapter introduces the identification of burglary. First of all, the "household" has two major features: place and function. In addition to privacy and exclusivity, households should also have family life functions. Dormitories, uninhabited residences, hotels, hotels and temporary sheds are generally not considered "households," but they are more closed, with the function of family life and commercial and residential housing during non-business hours. And temporary residence villas should be recognized as "households." Secondly, the burglary should be illegal. Finally, the accomplished standard of burglary is "out of control theory plus control theory". The third chapter introduces the identification of pickpocketing. Firstly, the implementation place of pickpocketing is a public place, which is characterized by openness, time and number of people. Secondly, the author analyzes the object of crime. Finally, pickpocketing accomplished standard is "out of control theory plus control." The fourth chapter introduces the identification of the theft with the murder weapon. First of all, judging whether the weapon is a murder weapon from the danger of the weapon and the subjective will of the perpetrator, such as the minority people wear the knife according to the custom, the small object or the crime tool that people carry with them can not be considered as the murder weapon. Second, it should be in the process of theft with the murder weapon. Finally, the standard of accomplishment is "out of control theory plus control theory". The fifth chapter introduces the identification research of multiple theft. First of all, the identification of "secondary" should have a criminal intent and continuous time period, and should be combined with the location of the environment. Theft that has been subject to administrative punishment should also be counted as "secondary". Secondly, the accomplished standard of multiple thefts in this paper is "out of control theory plus control theory".
【学位授予单位】：昆明理工大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3
[Abstract]:This article focuses on the problems in the judicial identification of four special kinds of theft, namely burglary, pickpocketing, burglary with murder weapon and multiple theft. The first chapter introduces the concept of four special acts of theft. And the special theft since 1979 related legislative changes. The special theft legislation in Germany, Japan, Italy, Hungary, the United States and the United Kingdom is introduced. The second chapter introduces the identification of burglary. First of all, the "household" has two major features: place and function. In addition to privacy and exclusivity, households should also have family life functions. Dormitories, uninhabited residences, hotels, hotels and temporary sheds are generally not considered "households," but they are more closed, with the function of family life and commercial and residential housing during non-business hours. And temporary residence villas should be recognized as "households." Secondly, the burglary should be illegal. Finally, the accomplished standard of burglary is "out of control theory plus control theory". The third chapter introduces the identification of pickpocketing. Firstly, the implementation place of pickpocketing is a public place, which is characterized by openness, time and number of people. Secondly, the author analyzes the object of crime. Finally, pickpocketing accomplished standard is "out of control theory plus control." The fourth chapter introduces the identification of the theft with the murder weapon. First of all, judging whether the weapon is a murder weapon from the danger of the weapon and the subjective will of the perpetrator, such as the minority people wear the knife according to the custom, the small object or the crime tool that people carry with them can not be considered as the murder weapon. Second, it should be in the process of theft with the murder weapon. Finally, the standard of accomplishment is "out of control theory plus control theory". The fifth chapter introduces the identification research of multiple theft. First of all, the identification of "secondary" should have a criminal intent and continuous time period, and should be combined with the location of the environment. Theft that has been subject to administrative punishment should also be counted as "secondary". Secondly, the accomplished standard of multiple thefts in this paper is "out of control theory plus control theory".
【学位授予单位】：昆明理工大学
【学位级别】：硕士
【学位授予年份】：2017
【分类号】：D924.3
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