论盗窃数额的认定
发布时间：2019-01-21 20:58
【摘要】：伴随着私有制的出现,盗窃罪也随之产生,它是司法实践中最古老和常见的犯罪形式之一。时代在进步,社会经济在发展,而形式多样、手段特殊的盗窃犯罪案件也在不断出现。但无论盗窃的手法如何翻新,花样如何变化,其侵财犯罪的本质不会变,因此盗窃数额就必然成为评价其危害性及量刑的要件。我国《刑法》第264条以及最高人民法院、最高人民检察院《关于审理盗窃案件具体应用法律若干问题的解释》的规定均直接涉及数额问题,由此可见数额在盗窃罪的认定中具有重要的作用。笔者结合五年来的实际检察工作经验,针对现行相关法律在司法实践中对盗窃数额认定的存在的争议和问题进行了论述。本文第一部分列举了作者五年实际工作中的盗窃数额认定的三个”非典型”案例,这一部分主要通过”非典型”案例逐一列出案例中的司法争议,即：一是在主观客观不能统一,行为人实际窃取的财物价值与主观认识到的财物价值不符时,如何认定盗窃的数额；二是盗窃难以确定价格的物品时,如何认定盗窃数额；三是盗窃虚拟财物时,盗窃数额如何认定。作者对三个案例进行了详细的评析,并针对此部分提出的“三种特殊情况”在第三章给予相应的建议。本文第二章系统的论述了我国在盗窃数额认定立法上的沿革。分别对古代在盗窃数额认定立法的三次历史性飞跃进行介绍品析,并就现行法律对盗窃数额认定的相关问题的沿革和争议进行细要阐述。本文第三章是理论和实践结合的升华部分,其主要内容是现行法律框架内对完善盗窃数额认定的建议。作者针对第一章中实际案例存在的争议,对现行法律中提出司法操作上的建议,提出解决对策。文章依据实际工作案例和所学习研究讨论的相关知识进行理论分析,得出结论。论文最后部分总结全文,并给予了检察工作人员对立法严谨的无限期望。
[Abstract]:With the appearance of private ownership, larceny comes into being, which is one of the oldest and most common forms of crime in judicial practice. The times are progressing, the social economy is developing, and the crime of theft with various forms and special means is also emerging. However, no matter how the method of theft is renovated and how the pattern changes, the nature of the crime of invading money will not change, so the amount of theft will inevitably become an important element to evaluate its harmfulness and sentencing. Article 264 of the Criminal Law of our country and the provisions of the Supreme people's Court and the Supreme people's Procuratorate on the interpretation of certain issues concerning the specific application of the law in handling cases of theft are all directly related to the question of the amount of money. This shows that the amount of theft in the determination of an important role. Combined with five years' practical experience in procuratorial work, the author discusses the disputes and problems existing in the judicial practice of the current relevant laws on the determination of the amount of theft. The first part of this paper lists three "atypical" cases in which the author has identified the amount of theft in his five years' actual work. This part mainly lists the judicial disputes in the cases one by one through "atypical" cases. That is: first, how to determine the amount of theft when the subjective objective can not be unified and the actual value of the property stolen by the actor does not match the subjective value of the property; The second is how to determine the amount of theft when it is difficult to determine the price of goods, and the third is how to determine the amount of theft when stealing virtual property. The author makes a detailed analysis of the three cases, and gives the corresponding suggestions in Chapter 3 for the "three special cases" proposed in this part. The second chapter systematically discusses the evolution of the legislation of the amount of theft in China. This paper introduces and analyzes three historical leaps in the legislation of the amount of theft in ancient times, and expounds the evolution and controversy of the existing laws on the determination of the amount of theft. The third chapter is the sublimation part of the combination of theory and practice, the main content of which is the suggestion of perfecting the amount of theft within the current legal framework. In view of the disputes in the actual cases in the first chapter, the author puts forward some suggestions on the judicial operation in the current law and puts forward some countermeasures. According to the actual work cases and the relevant knowledge of the study and discussion, the paper makes a theoretical analysis and draws a conclusion. The last part of the paper summarizes the full text, and gives the procuratorial staff the unlimited expectation of strict legislation.
【学位授予单位】：黑龙江大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3
本文编号：2413034
[Abstract]:With the appearance of private ownership, larceny comes into being, which is one of the oldest and most common forms of crime in judicial practice. The times are progressing, the social economy is developing, and the crime of theft with various forms and special means is also emerging. However, no matter how the method of theft is renovated and how the pattern changes, the nature of the crime of invading money will not change, so the amount of theft will inevitably become an important element to evaluate its harmfulness and sentencing. Article 264 of the Criminal Law of our country and the provisions of the Supreme people's Court and the Supreme people's Procuratorate on the interpretation of certain issues concerning the specific application of the law in handling cases of theft are all directly related to the question of the amount of money. This shows that the amount of theft in the determination of an important role. Combined with five years' practical experience in procuratorial work, the author discusses the disputes and problems existing in the judicial practice of the current relevant laws on the determination of the amount of theft. The first part of this paper lists three "atypical" cases in which the author has identified the amount of theft in his five years' actual work. This part mainly lists the judicial disputes in the cases one by one through "atypical" cases. That is: first, how to determine the amount of theft when the subjective objective can not be unified and the actual value of the property stolen by the actor does not match the subjective value of the property; The second is how to determine the amount of theft when it is difficult to determine the price of goods, and the third is how to determine the amount of theft when stealing virtual property. The author makes a detailed analysis of the three cases, and gives the corresponding suggestions in Chapter 3 for the "three special cases" proposed in this part. The second chapter systematically discusses the evolution of the legislation of the amount of theft in China. This paper introduces and analyzes three historical leaps in the legislation of the amount of theft in ancient times, and expounds the evolution and controversy of the existing laws on the determination of the amount of theft. The third chapter is the sublimation part of the combination of theory and practice, the main content of which is the suggestion of perfecting the amount of theft within the current legal framework. In view of the disputes in the actual cases in the first chapter, the author puts forward some suggestions on the judicial operation in the current law and puts forward some countermeasures. According to the actual work cases and the relevant knowledge of the study and discussion, the paper makes a theoretical analysis and draws a conclusion. The last part of the paper summarizes the full text, and gives the procuratorial staff the unlimited expectation of strict legislation.
【学位授予单位】：黑龙江大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3
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