盗窃罪中相容法效果法条竞合之处理

Solutions to the Overlaps of Law Articles with Compatible Law Effects in the Crime of Theft

盗窃罪的五种行为类型竞合,属于法条竞合中相容法律效果的竞合。实务中,竞合的情形具有相当的普遍性,是司法实践中亟待厘清的问题。其中的普通盗窃与特殊盗窃竞合,为避免重复评价,应以盗窃数额较大为入罪情节,以特殊盗窃中的特殊要素为量刑情节;除多次盗窃之外的特殊盗窃间的竞合,应以司法实践中适用几率低的所谓狭义法为入罪情节,其他特殊盗窃中的特殊要素为量刑情节;多次盗窃与普通盗窃、其他特殊盗窃的竞合,则应分别以普通盗窃和特殊盗窃作为入罪情节。另外,通过盗窃罪中相容法效果竞合问题的解决,将有助于统一诸如扒窃的规范性定义等认识问题。

The five types of behavior in the crime of theft have overlaps falling into the category of overlaps of law articles with compatible law effects.Overlap is a quite common problem needs to be clarified in the judicial practice.To avoid repeated evaluation,overlaps between the common theft and the special theft should be settled by regarding large burglary amount as the circumstance for conviction and the special elements of the special theft as the circumstances for sentencing.As for the overlaps between special thefts,excluding repetitious theft,the law with low application probability in the practice should be applied as the circumstance for conviction,while the special elements of other special thefts as the circumstances for sentencing.The overlaps between repetitious theft and common theft or other special thefts should be respectively settled by regarding common theft and special thefts as the circumstance for conviction.In addition,finding solutions to the overlaps of law articles with compatible law effects in the crime of theft will conduce to the unified understanding of the problems including the normative definition of theft.