Meaning And Judgment Of Carrying Lethal Weapon In Criminal Law

There are two legislative purposes to regulate the use of lethal weapon in Criminal Law: one is to punish the illegal criminal acts committed by using lethal weapon and achieve the balance of crime and punishment;the other is to reflect the preventive role of Criminal Law,that is,to use severe punishment to prevent or stop the use of lethal weapon for vicious crimes.In the Criminal Law of our country,the regulations of carrying lethal weapon are embodied in the provisions of Article 264 theft with lethal weapon and Article 267 snatch with lethal weapon.Due to the complexity of social daily life,there are many kinds of lethal weapon involved in two kinds of criminal acts: theft with lethal weapon and snatch with lethal weapon.It is difficult to distinguish them,and it is often difficult to identify them in judicial practice,so the accurate identification of lethal weapon plays an important role in judicial application.However,there is no unified conceptual provision for lethal weapon in China.In order to analyze this problem,this paper is divided into four parts to explain the meaning and judgment of lethal weapon in Criminal Law.The first part of this paper is the introduction part.First of all,it points out that the Criminal Law and relevant judicial interpretations of our country only stipulate the upper concept of carrying lethal weapon,and do not specifically define the types and scope of the lethal weapon in the crime of carrying lethal weapon.Secondly,through the case of "stealing dogs with poisonous needles" in Puyang Intermediate People's Court,it points out that there are many differences in the judgment of carrying lethal weapon in the practical affairs.Finally,it points out that the resolution of this difference is the theme of this paper.The second part of this paper starts with the background and legislative purpose of carrying lethal weapon,discusses the carrying act and the connotation of carrying lethal weapon of Criminal Law so as to define the normative connotation of carrying lethal weapon.First of all,it introduces the historical background of the two amendments of Criminal Law and the legislative purposes of the prevention of Criminal Law and the balance of crime and punishment.Secondly,it introduces that the act of carrying a lethal weapon is the act that the perpetrator carries and controls the lethal weapon at any time in the process of committing a crime for the purpose of breaking the law.Finally,it introduces the criminal connotation of the lethal weapon from the Criminal Law scope,essential characteristics and theoretical definition standards,and points out that the lethal weapon refers to the instruments or appliances related to the crime and ready to be used or actually used by the perpetrator in the process of committing a crime,which is the objective and independent existence that does not transfer from the will or act of the perpetrator,and its function intensity should be able to cause the consequence of serious bodily injury or even death or cause realistic and high probability of occurrence.At the end of this part,the paper points out that the theoretical definition standards include two theories: one is the theory of lethal force,which emphasizes the nature or possibility of killing their lives and damaging their health and safety;the other is the theory of threat,which emphasizes the sense of fear and danger.The third part of this paper analyzes the significance of judgment and judicial judgment standards of the crime of carrying lethal weapon,and the differences in the definition of the crime of carrying lethal weapon.First of all,it introduces that the judgment of carrying lethal weapon is of great significance to the judgment of whether the act committed by the perpetrator constitutes a crime,what kind of crime it constitutes and the seriousness of the crime.Secondly,in order to avoid the shortcomings of the theory of lethality and the theory of intimidation,which can be applied separately,the relevant judicial interpretation of our country has been adjusted many times,in this paper the judicial judgment standards of lethal weapon sum up as "objective danger standards","objective danger and subjective use standards" and "objective danger and subjective measurement standards".However,the judgment standards of lethal weapon theft and snatch are not uniform in judicial interpretation.Finally,this paper introduces the different understanding and regulations of "carrying lethal weapon" in the judicial interpretation of theft and snatch with lethal weapon.In order to clarify the judicial judgment standards of carrying lethal weapon and expand and improve it,the fourth part of this paper expands and improves the judicial judgment of carrying lethal weapon from two aspects of the common and differences.There are four aspects to be explained in this paper about the common judgment of carrying lethal weapon.First of all,this paper suggests that the category of lethal weapon in Criminal Law should be expanded,because in the broad range of lethal weapon,the lethal weapon is an objective and independent existence,and the scope of object not only includes the inanimate type of "instruments",but also includes beagles,bacterial viruses and other living things.And beagles,bacterial viruses and other living things have the essential characteristics of lethal weapon and the characteristics of portability and controllability,so they should be included in the consideration of the category of lethal weapon.Secondly,according to different situations,this paper analyzes the judgment standards of instruments that are forbidden to be carried by individuals,such as guns,explosives and controlled knives.Thirdly,in order to avoid confusion,this paper suggests that the lethal weapon should be clearly distinguished from other things such as instruments,dangerous goods and crime tools.Finally,this paper suggests to establish a unified subjective judgment standards of lethal weapon.The subjective intention of carrying lethal weapon,whether for the purpose of carrying out illegal act or criminal act,is for the purpose of suppressing or excluding the resistance of the victim in the process of carrying out illegal act.Therefore,the subjective intention of "for the purpose of carrying out illegal crime" can be stipulated,and the expression can be changed for "in order to exclude or prevent other people's resistance" and other similar statements that do not require the perpetrator's subjective judgment of his own act.In the determination of the difference of carrying lethal weapon,this paper suggests that he theft with the lethal weapon and the snatch with the lethal weapon should be considered in terms of the degree of personal harm and the probability of use of the weapon.It is suggested to clearly stipulate that in addition to the instruments prohibited by the state,the weapon involved in the snatch with lethal weapon can be any weapon carried with in order to exclude or prevent other people's resistance.And the weapon involved in the theft with lethal weapon can only be the weapon that is enough to endanger other people's personal safety in order to exclude or prevent other people's resistance.