论盗窃罪的特殊行为
发布时间：2019-06-18 18:01
【摘要】：《刑法修正案(八)》对盗窃罪做了很大的修改,将原来的盗窃罪的两种行为增加为五种。其中,“盗窃公私财物数额较大”为普通的盗窃行为,而“多次盗窃、入户盗窃、携带凶器盗窃、扒窃”则为盗窃罪的特殊行为。随着盗窃罪行为类型的增加,司法实践和理论必然会有所改变。在2013年3月8号两高也出台了《关于办理盗窃刑事案件适用法律若干问题的解释》(以下简称《2013年解释》),对这四种特殊行为进行了界定,但是司法实践中仍然存在着以下的问题。实践中对四种行为手段没有统一的界定,对入罪的标准也没有统一的规定,对其是“结果犯”或者是“行为犯”也有很大的争论。 针对以上问题,本文具体研究了这四种行为的含义、行为界定、着手标准、既遂的标准等。首先,对于“多次盗窃”行为,具体研究了“多”以及“次”在多次盗窃中的含义；对多次盗窃的数额及形态进行了分析,认为中止和未遂应当计入多次盗窃的次数之中,而数额非常小的盗窃行为并不构成盗窃罪；受过行政处罚的盗窃行为是可以计入多次盗窃中的次数。其次,对于“入户盗窃”行为,具体研究了“户”的涵义,并分析了集体宿舍、合租房以及商住两用房是不是可以认定为“户”,并认为以实施违法行为为目的的入户才属于入户盗窃；入户盗窃也区分既遂与未遂,只要以非法手段进入住宅就是入户盗窃的着手,着手后窃取到财物就是既遂；入户盗窃也存在共犯的情形。再次,对于“携带凶器盗窃”行为,具体研究了“凶器”的含义,从主客观两个方面对“携带凶器”进行了认定；认为行为人只要接触到其欲盗窃的财物就是既遂；对携带凶器盗窃与携带凶器抢劫的区别进行了阐述。最后,对于“扒窃”行为,具体研究了扒窃行为的三要素,即公共场所、随身携带的财物、公共交通工具；认为扒窃行为的着手是指行为人的手或工具接触到被害人的口袋外侧,而且扒窃也存在未遂的情形,即由于意志以外的原因没有窃取到被害人的财物；还对扒窃的规定与《刑法》13条但书之间的关系进行了分析；认为扒窃不需要以秘密窃取为条件,也不需要具有技术性。
[Abstract]:The Criminal Law Amendment (8) has made great changes to larceny, increasing the original two acts of larceny to five. Among them, "stealing large amount of public and private property" is an ordinary theft, while "multiple theft, burglary, theft with murder weapon, pickpocketing" is a special act of theft. With the increase of larceny behavior, judicial practice and theory will inevitably change. On March 8, 2013, the two high schools also issued the interpretation of the applicable Law in handling Criminal cases of Theft (hereinafter referred to as the interpretation in 2013), which defined these four special acts, but there are still the following problems in judicial practice. In practice, there is no unified definition of the four kinds of behavior means, there is no unified stipulation on the standard of incrimination, and there is also a great debate about whether it is a "result crime" or a "act crime". In view of the above problems, this paper studies the meaning of these four kinds of behavior, behavior definition, starting standard, accomplished standard and so on. First of all, for the act of "multiple theft", the meaning of "multiple" and "multiple" in multiple theft is studied concretely; the amount and form of multiple theft are analyzed, and the suspension and attempt should be included in the number of multiple thefts, and the very small amount of theft does not constitute larceny; the theft that has been punished by administrative punishment can be included in the number of multiple thefts. Secondly, for the behavior of "burglary", this paper specifically studies the meaning of "household", and analyzes whether the dormitory, joint rental housing and commercial and residential housing can be regarded as "household", and that the entry into the house for the purpose of carrying out illegal acts belongs to household theft; burglary also distinguishes between accomplished and attempted, as long as entering the house by illegal means is the beginning of household theft, stealing property is accomplished. Burglary also exists as an accomplice. Thirdly, for the behavior of "carrying murder weapon theft", the meaning of "murder weapon" is studied concretely, and the subjective and objective aspects of "carrying murder weapon" are identified; it is considered that the perpetrator is accomplished as long as he comes into contact with the property he wants to steal; and the difference between carrying murder weapon theft and carrying murder weapon robbery is expounded. Finally, for the behavior of pickpocketing, this paper studies the three elements of pickpocketing, that is, public places, property carried with him and public transport, and holds that the hand or tool of pickpocketing refers to the hands or tools of the perpetrator touching the outside of the victim's pocket, and there is also an attempted pickpocketing, that is, the property of the victim has not been stolen because of reasons other than will. This paper also analyzes the relationship between pickpocketing and 13 provisos of the Criminal Law, and holds that pickpocketing does not need to be conditional on secret theft or technical.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3
本文编号：2501678
[Abstract]:The Criminal Law Amendment (8) has made great changes to larceny, increasing the original two acts of larceny to five. Among them, "stealing large amount of public and private property" is an ordinary theft, while "multiple theft, burglary, theft with murder weapon, pickpocketing" is a special act of theft. With the increase of larceny behavior, judicial practice and theory will inevitably change. On March 8, 2013, the two high schools also issued the interpretation of the applicable Law in handling Criminal cases of Theft (hereinafter referred to as the interpretation in 2013), which defined these four special acts, but there are still the following problems in judicial practice. In practice, there is no unified definition of the four kinds of behavior means, there is no unified stipulation on the standard of incrimination, and there is also a great debate about whether it is a "result crime" or a "act crime". In view of the above problems, this paper studies the meaning of these four kinds of behavior, behavior definition, starting standard, accomplished standard and so on. First of all, for the act of "multiple theft", the meaning of "multiple" and "multiple" in multiple theft is studied concretely; the amount and form of multiple theft are analyzed, and the suspension and attempt should be included in the number of multiple thefts, and the very small amount of theft does not constitute larceny; the theft that has been punished by administrative punishment can be included in the number of multiple thefts. Secondly, for the behavior of "burglary", this paper specifically studies the meaning of "household", and analyzes whether the dormitory, joint rental housing and commercial and residential housing can be regarded as "household", and that the entry into the house for the purpose of carrying out illegal acts belongs to household theft; burglary also distinguishes between accomplished and attempted, as long as entering the house by illegal means is the beginning of household theft, stealing property is accomplished. Burglary also exists as an accomplice. Thirdly, for the behavior of "carrying murder weapon theft", the meaning of "murder weapon" is studied concretely, and the subjective and objective aspects of "carrying murder weapon" are identified; it is considered that the perpetrator is accomplished as long as he comes into contact with the property he wants to steal; and the difference between carrying murder weapon theft and carrying murder weapon robbery is expounded. Finally, for the behavior of pickpocketing, this paper studies the three elements of pickpocketing, that is, public places, property carried with him and public transport, and holds that the hand or tool of pickpocketing refers to the hands or tools of the perpetrator touching the outside of the victim's pocket, and there is also an attempted pickpocketing, that is, the property of the victim has not been stolen because of reasons other than will. This paper also analyzes the relationship between pickpocketing and 13 provisos of the Criminal Law, and holds that pickpocketing does not need to be conditional on secret theft or technical.
【学位授予单位】：安徽大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.3
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