盗窃罪新增行为方式评析

Comments on the Newly-augmented Behavioral Patterns of the Crime of Theft

《刑法修正案(八)》第39条对盗窃罪的行为方式的增设凸显了刑法在维护社会秩序、强化对法益的保护方面具有鲜明的功利性色彩,同时,也是刑法理性逐渐趋向边缘化的结果。从司法适用的角度看,有必要对三种新增行为方式作出准确解读。对于入户盗窃和携带凶器盗窃应根据此前的有关司法解释作出相应的阐释;而对于扒窃行为则可以从地点特征和对象特征两个方面加以限制。就犯罪形态而言,盗窃罪依然是结果犯,既要准确解读,也应清醒地看到立法修改中所存在的问题,如罪刑设置均衡性缺损、罪状设置规范性不足以及刑事处罚边界的模糊。

The augmentation of behavioral patterns of the crime of theft in Article 39 of the Amendment VIII to the Criminal Law manifests distinct utilitarian color of criminal law in maintaining social order and strengthening the pro- tection of legal interests, and is also the result of gradual marginalization of the reason of criminal law. From the angle of judicial application, it is necessary to accurately interpret the newly-augmented three behavioral patterns of the crime of theft. As far as burglary and theft with a lethal weapon are concerned, the appropriate explanations should be given according to the previous relevant judicial interpretation. As far as pick-pocketing is concerned, restrictive in- terpretation can be given from the characteristics of place and object. As far as the criminal pattern is concerned, the crime of theft is still consequential offense. After accurate explanations are given to the newly-augmented three behav- ioral patterns of the crime of theft, there still exist problems in legislative revision such as lack of balance in the setup of crime and punishment, insufficiency in the setup of fact about the crime of theft and indistinctness of the boundary of criminal punishment.