“平和窃取说”理论和实践意义之重申

A Reaffirmation of the Theoretical and Practical Significance of the "Peaceful Theft Theory"

我国刑法学界对盗窃罪与抢夺罪的界限问题存在传统观点与"平和窃取说"的争论。通说主张的行为"秘密性"具备规范意义的观点可能存在主观归罪的风险;"平和窃取说"与"秘密窃取说"的对立是文义解释力所不及所产生的漏洞所致,"平和窃取说"并未违反罪刑法定原则;"行为人自认为秘密进行"的要件不能作为盗窃罪主观的构成要件要素,因此"秘密窃取说"对"平和窃取说"的批评难以成立。"平和窃取说"有利于减轻盗窃与抢夺两罪在量刑上产生的罪刑倒挂问题,有利于避免通说下将携带凶器盗窃认定为拟制抢劫,从而造成量刑畸重的问题,因而具有相当的实践意义。

There is a debate between the traditional view and the " peaceful theft theory" on the boundary between larceny and robbery in the academic circle of China’s Criminal Law.The viewpoint that the " secrecy" of behavior advocated by the general theory has normative significance may have the risk of subjective imputation;The opposition between " peaceful theft theory" and " secret theft theory" is due to the loophole caused by the inability of literal interpretations." Peaceful theft theory" does not violate the principle of legally prescribed crime and punishment,and the element of " the perpetrator thinks that it is carried out in secret" can not be used as the subjective constituent element of larceny.Therefore,the criticism of " secret theft theory" to " peaceful theft theory" is difficult to establish,in which the later theory is conducive to reducing the upside down of criminal responsibility in the sentencing of the two crimes of theft and robbery,and is conducive to avoiding identifying the theft with lethal weapon as fictitious robbery,resulting in the problem of excessive sentencing,which is of considerable practical significance.