Difficult Issues On Judicial Practice Of Attempt Of Theft And How To Be Resolved

The thesis gives a research of the difficult issues on judicial practice of attempt of theft in hoping of offering proper standards for cognizance of form of attempt of theft. The thesis applies various methods of study which including the way of logical analysis and of cases analysis and of comparative analysis etc. In principle the thesis persists the standard of essential danger about study on cognizance of starting to commit theft—regards the act that thief starting to conquer or destroy the inner measure which adequately effectively protects the properties as the standard of cognizance of starting to theft. The thesis adopts the standard of "control" among the study on cognizance of theft being in complete and clarifies relatively points which involving how to concretely comprehends the meaning of "control". If the assets are not outside the range of control of owner meanwhile the form of discontinuation of act of thief should be judged as theft being incomplete. From which aspect to confirm whether the negative factors could adequately prevent the will of thief or not among the study on cognizance of factors independent from will of thief, the thesis considers the inference of objective fact the standard provided that the subjective sense of thief could not proven by any evidences in judicial practice instead of the theoretical standard—the standard of cognizance of combination of the subjective sense of thief and feature of objective fact. Judged by social notions—if common men continue the act of steal comparatively the thief discontinues, we infer that negative factors fail to adequately prevent the will of thief about the subjective sense of the thief. It is regarded as form of attempt of theft provided that common men give up the act of steal and so does the thief, so we infer that negative factors adequately prevent the will of thief about the subjective sense of the thief. For clearly clarifies relative points, the thesis comments on the dispute on starting to commit a crime in criminal law theory among states of civil law system, has a research of theories about how to distinguish between form of attempt and completion of theft as well as remarks them one by one from which acquire reasonable lessons, the thesis also attempts to analyze the meaning of factors independent from will of offender in Chinese criminal law. All in all, whether these three issues—cognizance of starting to commit theft and cognizance of theft being in complete and cognizance of factors independent from will of thief could be clearly clarified or not will have significant meaning to the cognizance of form of attempt of theft in the cases of theft.