Research On The Crime Of Fictional Robbery

The crime of fictional robbery in china's criminal theory is referred to special kind crime, which constitutional characteristics are different from the normal robbery, but the legislator who based on specially purpose entrusted the special behaviors with the legal effects of the normal robbery. There are three kinds of special situations named the crime of fictional robbery in China's present criminal code, which are stipulated in the 2nd articles of clause 267, the clause 269 and the clause 289. Specifically speaking, it includes the situations of transforming robbery, carrying with lethal weapons and gathering people to beat, smash or loot others' property on purpose. We have the necessity to give synthetic study to these three integral situations. The concept of fictional robbery is proposed first based on the theoretical summary of the three kind of special situations which stipulated in the criminal law. Another purpose is describing the legal essence of those three situations.Although the situations of three kind of the crime of the fictional robbery has there own constitutions, they should have some general characters. For the object of crime, the situations of three kind of the fictional robbery all have two objects, that is to say, each behavior has simultaneously encroached upon the property rights and the personal rights, and the latter is the primary object. For the objective aspect, the transforming robbery is compound behaviors, which is the same as normal robbery. But the behavior of taking others' property take place much early than the behavior of enforcing the other's body. The additional circumstances of the crime of carrying with lethal weapons to grab and gathering people to commit beating, smashing or looting are similar to normal robbery. However the two situations are the crime of single behavior, which is far different from the normal robbery. For the subjective aspect, the transforming robbery has the intent of carrying others' property illegally and simultaneously has the intent of enforcing the other's body and damage others' property, which is similar to the normal robbery. But the purpose of forcing the person is after taking the property in the transforming robbery, which is different from the normal robbery; the crime of carrying with lethal weapons to grab also has the purpose of taking the property of the others illegally and has the intention of taking the property in public, although has not the intention of enforcing person's body; the crime of gathering people to beat, smash or loot has no special purpose, but has the intention of damage others' property.The crime of fictional robbery has same and different characters with the normal robbery. The important problem on how to recognize the crime of fictional robbery is how to recognize the difference with the characters of normal robbery. Among those characters, some are difficult problems of how to recognize in judicial practice or among theorists. For example, how to recognize "on the spot" in transforming robbery; how to recognize the additional circumstance of "carrying with lethal weapons" in the case of carrying with lethal weapons to grab; how to recognize the additional circumstance of gathering people to "beat, smash or loot"; how to recognize the subjective intention of "concealing the booty, resisting arrest or destroying the criminal evidence" in the case of transforming robbery. Specially speaking, we should recognize the conditions of "on the spot" with time scope and space scope; the condition of "carrying lethal weapons" should recognize what is carrying means and what are the lethal weapons; the crime of gathering people to beat, smash or loot is such case that gather 3 people or more people to destroy or damage others' property on purpose, which need telling difference from the condition of subjective intention of different cases; the transforming robbery includes the behaviors of concealing the booty, resisting arrest and destroying the criminal evidence, which with each of them can be committed such fictional robbery.