从“要素分析”回归“类型考察”:为“秘密窃取说”辩护

From“Factor Analysis”to“Type Investigation”:Defense for“Secret Theft Theory”

关于“盗窃行为是否具有秘密性”这一问题,“公开盗窃说”与“秘密窃取说”的理论争鸣持续多年而未平息。寻根溯源,上述理论未达成共识的原因在于:对盗窃行为进行界定时,“公开盗窃说”遵循了“从部分到整体”的要素分析思维方式,“秘密窃取说”则遵循了“从整体到部分”的类型考察思维方式。以盗窃罪的立法机理为评价标准,“秘密窃取说”遵循的类型考察思维方式可谓盗窃罪的类型化立法机理在刑法理论上的延续。同时,取财行为秘密与否,是对盗窃罪与抢夺罪“同质分立”的类型分类标准做出的正确把握。这表明“秘密窃取说”是应予坚持的刑法教义学理论。引申考察,“秘密窃取说”遵循的类型考察思维方式、坚持的主客观相统一的刑法原理,对于深化犯罪构成理论可以起到积极的作用,即主客观相统一的刑法原理有助于正确理解犯罪主客观要素的相互依存关系,以类型为指导观念则为行为无价值二元论提供支持。

On the issue of“whether theft needs to be secret”,the theoretical debate between“public theft theory”and“secret theft theory”has not subsided for many years.On the root,the reason why there is no theoretical consensus is that these two theories follow different ways of thinking when understanding theft.Specifically,“public theft theory”follows the thinking way of factor analysis of“from part to whole”,that is,under the premise of cutting the connection between subjective and objective factors of crime.It proceeds to investigate the objective behavior of acquiring taking money and the cognitive content of subjective actors respectively,so as to form the understanding that theft can be open.On the contrary,“secret theft theory”follows the type investigation thinking mode of“from the whole to the part”.At the level of criminal law Dogmatik,the mode of thinking followed by criminal law theory is only consistent with the criminal legislation mechanism in essence.It is qualified to be called the doctrinal theory that regards criminal law as the“Bible”in order to obtain legitimacy and rationality.Only in this way can it be called a Dogmatik theory that regards criminal law as the“Bible”,so as to obtain legitimacy and rationality.Back to the level of criminal legislation,theft and robbery are the types of property crimes at the same level constructed by legislators following the typed thinking and using the legislative method of“separate legislation for acts of the same nature”.Therefore,it can be said that the thinking mode of type investigation followed by the“secret theft theory”is the continuation of the typed legislative mechanism of theft in the theory of criminal law.At the same time,whether the act of acquiring money is secret or not is a correct grasp of the type classification standard of“separate legislation for acts of the same nature”between theft and robbery,which can accurately distinguish the two crimes.However,the thinking mode of factor analysis followed by the“theory of public theft”is not consistent with the typed legislation mechanism.The dividing standard between theft and robbery advocated by this theory is a wrong understanding of the classification standard of two crimes,which is not practical.Generally speaking,“secret theft theory”is a criminal law Dogmatik theory that should be adhered to.Objectively speaking,taking the typed legislative mechanism as the evaluation standard,we can make a correct answer to the question of“whether the theft is secret”by comparing the rationality of the use of the thinking mode of“public theft theory”and“secret theft theory”.On the one hand,this research can jump out of the framework set by the existing theory and re-examine the theory,and the research on the problem can develop in depth.On the other hand,it can also resolve the above theoretical contention of“different opinions”and provide unified theoretical guidance for judicial practice.Furthermore,followed by the“secret theft theory”can play a positive role in deepening the theory of crime constitution.Firstly,the criminal law principle of the unity of subjective and objective is conducive to correctly understanding the interdependence of the subjective and objective elements of crime and correcting the wrong understanding that they are independent and should be investigated separately.Secondly,taking typing as the guiding concept provides support for the dualism of“handlungsunwert”,that is,only by integrating the“handlungsunwert”and“erfolgsunwert”can we fully grasp the illegality of typed conduct.