“携带凶器盗窃”的适用流程

The Procedure of Application of Stealing with Weapon

《刑法修正案(八)》增设的"携带凶器盗窃"由于法条的简略性,适用时凶器的认定、行为人对凶器的认识、行为人应否具备"使用凶器"的目的,以及行为人"使用凶器"的目的种类不一时如何处理这四个关键点,影响了行为人之行为的认定,有悖于刑法的"体系思维"。立法者应以"携带凶器盗窃"的立法目的——保护人的生命、身体法益——为立足点,紧扣这四个关键点按从客观到主观的认定顺序,创制该法条的适用流程,使其条文说明中展示出的限制解释与谦抑性刑事政策的立场相一致。

The briefness of The Eighth Amendment of Criminal Law on this specific crime leads to a difficulty in the determination of the nature of the crime .To consider a conductor ’ s conduct to be“stealing with weap-on”, the following factors should be accounted for：firstly, this tool must be thought of as a weapon , which should be based on the condition that a conductor knows this tool has an objective danger of harming and killing people;secondly, the conductor should have the intention of using the weapon;lastly,“stealing with weapon”can be applied when a conductor ’ s aim of using a weapon is to harm people ’ s legal interest of life and body .Therefore , legislators should , by taking into account the above mentioned factors , legislate on the procedure of application of “stealing with weapon” to meet the legislatorial original meaning of protecting the legal interests of life and body and seek consistency between the restrictive explanation and modest character of criminal law .