“扒窃”入刑：贴身禁忌与行为人刑法

“Pickpocketing”into Criminal Law: Next to the skin taboo and actor criminal law

"扒窃"入刑的法理构建,是被害人教义学与行为人刑法分工合作的结果。一方面,应从被害人视角出发,在不法构成要件层面进行扒窃概念的建构;"公共场所"与"随身携带"并非界定扒窃构成要件的核心要素;应以"贴身禁忌"作为扒窃概念的思想基础。扒窃是指侵入他人贴身范围、盗窃他人贴身携带的财物。随身携带的财物,如果不在贴身范围内,不能成为扒窃的对象;得到允许进入他人贴身范围后实施盗窃的,不构成扒窃。另一方面,应当发掘立法原意中的行为人刑法思想,在责任阶段限缩扒窃犯罪的打击范围;利用功能性的责任概念,在责任层面视情形给予扒窃的偶犯予以责任的减免。

Constructing the legal basis of getting＂ pickpocketing＂ into criminal law is the outcome of coop- eration between victim dogmatics and actor criminal law. On the one hand, the concept of pickpocketing should be constructed regarding illegal essential elements from the perspective of a victim. ＂Public area＂ and ＂carry-on＂ are not essential elements in defining constitutive requirements of pickpocketing. ＂Next to the skin taboo＂ should be the theoretical basis of the next to the skin area of the other persons and concept of pickpocketing. Pickpocketing refers to intruding the stealing their personal carry-on items. If the carry-on items are not within the next to the skin area, they could not be the objective of pickpocketing; stealing under the per- mission within the next to the skin area does not constitute pickpocketing. On the other hand, the criminal law thought of the actor in original intention of the legislation should be explored and the scope of the crime of pickpocketing should be limited at liability phase. With regard to liability, by applying the concept of function- al liability, the liability of casual offender of pickpocketing can be diminished or exempted under certain cir- cumstances, which may include imposing not guilty, criminal penalty exemption, or a lighter or mitigated pun- ishment and other legal consequences.