“盗”“抢”区分的学说争议、事实分析与法律判断——从“公开盗窃说”出发的思考

The Distinction between Theft and Robbery: Theoretical Controversy,Factual Analysis and Legal Judgment

通说认为盗窃罪具有"秘密性",而"公开盗窃说"认为盗窃罪是公开、平和取得他人财物。"公开盗窃说"不但影响盗窃罪的构成认定,"盗""抢"区分也要重新界分。针对盗抢区分的学说争议、事实分析与法律判断进行分析,笔者认为:"公开盗窃说"使盗窃罪的适用范围宽泛扩张,尤其在新类型案件的处理中表现明显。从方法论的角度,以扩张适用的方式来处理特殊情形的案件传导了"法律不确定性"和刑法扩张的危险信号,应慎重对待。"公开盗窃说"以"对物暴力""对人暴力"的简单界分,不符合我国刑法中财产犯罪的罪名设定与体系安排,无法发挥犯罪认定与罪名区分的功能。"对物暴力"不属于规范评价的内容,"盗""抢"区分的依据是本国刑法的罪名设定与体系安排,前提是案件事实的综合分析,目标是对行为危害性的充分评价,内容是"对人暴力"可能性的规范判断。

The general theory holds that theft is secret, while the public theft theory holds that theft is an open and peaceful acquisition of other people’s property. The theory of public theft not only affects the identification of the composition of theft, but also needs to reconsider The distinction between Theft and Robbery This paper analyzes the theoretical disputes, factual analysis and legal judgment of the distinction between theft and robbery, and holds that: the theory of public theft expands the scope of application of theft, especially in the handling of new types of cases. From the perspective of methodology, dealing with cases in special circumstances by expanding application scope transmits the dangerous signal of legal uncertainty and criminal law expansion, which should be treated with caution. “Public theft theory” is divided into violence against objects and violence against people, which is not in line with the charge setting and institutional arrangement of property crime in China’s criminal law, and can not play the function of crime identification and charge differentiation. Violence against objects does not subject to normative evaluation, and the distinction between theft and robbery is based on the charge setting and institutional arrangement of our criminal law. The premise is the comprehensive analysis of the facts of the case, the goal is to fully evaluate the harmfulness of behavior and the content is the normative judgment of the possibility of “violence against people”.