论盗窃罪数额犯的未遂

On Attempted Amount Crime of Theft

未遂犯是能够引起某种侵害法益威胁结果的结果犯。数额犯中的数额,既不是犯罪成立要件,也不是量刑规则,而是作为限制犯罪成立范围的要素,即只有在行为会引起一定数额的财物被侵害的危险结果时,该行为才有可能成立数额犯的未遂犯。我国《刑法》第264条所规定的三种盗窃罪数额犯,均有成立未遂犯的可能。就针对数额较大财物的盗窃行为,要成立未遂犯,一方面,必须具有引起数额较大财物被盗的危险,另一方面,还必须超越"情节显著轻微危害不大"的要求。这样说来,实施引起数额(特别)巨大财物被盗危险的场合就不用说了,即便是实施引起数额较大财物被盗危险,尚未造成严重后果(如窃取到了部分财物,但未达数额较大要求)的场合,也可成立数额较大类型盗窃罪的未遂犯。有关盗窃罪未遂犯相关司法解释是注意规定而非拟制规定,并不排除对数额较大类型的盗窃罪未遂犯的处罚;针对数额(特别)巨大财物进行盗窃,结果却只是盗窃到数额较大的财物的场合,属于想象竞合,应当择一重罪论处。

Attempted crime is a kind of consequential offense that poses a threat to le- gal interests. The amount in an amount offense is neither a constitutive element of crime, nor a sentencing criterion, but an element limiting the scope of crime. In other words, only if an act is likely to result in the encroachment of a certain amount of property, can it be judged as attempted crime of amount. All the three types of amount offense stipulated in Article 264 of Chi- nese Criminal Law may constitute an attempted crime. For the theft of a relatively large amount of property to constitute an attempted crime, it must meet two conditions ： firstly, it must put a relatively large amount of property at the risk of being stolen; secondly, it must exceed the standard that ＂the circumstance is obviously minor and the harm done is not serious＂. Thus, if an unaccomplished act of theft has put an （extremely） large amount of property at the risk of being stolen, it can constitute an attempted crime. An act that has put a relatively large amount property at the risk of being stolen, but has not yet caused serious consequences （ e. g. a portion of the property is stolen, but the amount does not reach the standard of a relatively large amount）, it can still constitute the crime of attempted theft of a relatively large amount of prop- erty. The judicial interpretation on attempted theft is a provision of attention rather than a ficti- tious one, so it doesn＇ t exclude the establishment and punishment of attempted theft of a rela- tively large amount of property. If the actor aims to steal a huge （ or especially huge） amount of property, but only succeeds to steal a relatively large amount of property, he would be considered as imaginative jointer of offense, and should be punished in accordance with the severer punishment rule.