转化型入户抢劫的先行为探究

Research of the Previous Behavior of Transformed Household Robbery

我国的司法解释只明确规定了入户盗窃后为窝藏赃物、抗拒抓捕、毁灭罪证而当场使用暴力或以暴力相威胁的行为可以直接转化为入户抢劫,而对于入户抢夺、诈骗在同等情形下是否可以直接转化为入户抢劫无明确规定。但是,事实上入户抢劫在入户前无需具备抢劫等犯罪目的。入户抢劫的核心要件不在于"入户"行为本身的非法性,而在于行为人利用了入户后形成的环境优势。司法解释对于入户盗窃的转化规定不应是法律拟制而应是注意规定。基于罪刑相适应的原则,入户抢夺、诈骗后为窝藏赃物、抗拒抓捕、毁灭罪证而当场使用暴力或以暴力相威胁的行为可以直接转化为入户抢劫。

Chinese judicial interpretation only clearly stipulates that in order to harbor stolen goods, resist ar- rest, and destroy evidence, the violence behavior or threatening behavior via violence after burglary can directly be transformed into household robbery. However, there is no specific stipulation about whether the loot and fraud can directly be transformed into household robbery. Nonetheless, the fact is that household robbery don not have to be equipped with the aim of rob or something else before enter the house. The core of the household robbery is that the actor has taken advantage of the environment after entering the house, instead of the illegality of the behavior of en- tering the house. The regulation on the transformed household robbery should be caution regulation instead of legal fiction. Based on the principle of suiting punishment to crime, in order to harbor stolen goods, resist arrest, and destroy evidence, the violence behavior or threatening behavior via violence after loot and fraud can directly be transformed into household robbery.