Study On The Judicial Cognizance Of “Violence” In The Transformative Robbery

The cognizance on the violence in the transformative robbery has not been uniform in the practice, which also attracted the numerous disputes in the theoretical circle. This paper will take the six real cases in practice as the lead and probe into the relevant issues involved in the violence in the transformative robbery and when the theft, fraud and plunder will be transformed into the robbery.This paper begins with the six transformative robbery cases which have been convicted, starts with the controversial focuses in the cases, summarizes four common problems on the violence in the transformative robber therefrom, then elaborates the four common problems one by one and finally introduces the standpoint of this paper.This paper is composed of seven parts: Part One introduces the collected and sorted six cases, their controversial disputes in the practice and the decisions by the courts and summarizes the four controversial issues on the violence in the transformative robbery, that is, the different opinions on whether the expression forms of the violence fall into the violence in Article 269 in the criminal law, whether the attack strength is required to meet the violence degree required in the robbery in the criminal law, whether only the violence of the doer results in the relevant consequence can be transformed into robbery, what purposes or motives the violence have and when the violence happens can be transformed into the robbery.Part Two begins with the etymological explanation and daily meaning of the violence, analyzes the common meaning thereof, introduces the regulatory expressions of the violence in the criminal laws of England, the United States, Germany and Japan, detects the different characteristics of the provisions on the violence in the criminal laws between the Anglo American legal system, the Continental legal system and China by comparison with the provisions on the violence in the criminal law in China and accomplishes the meaning discussion on the violence with the introduction to many theories on the violence.Part Three defines that the violence in the transformative robbery should be characterized with subject, attack and suppression, and in combination with specific cases defines that the expression forms of the transformative robbery can not be conceptualized but only cognize whether some act falls into the violence in the transformative robbery from the nature of the act.Part Four introduces the violence degree and the cognizance on the results through the introduction into the theories and in combination with specific cases.Part Five detects from the cases that in the actual life, the doer who commits the theft, fraud and robbery may have the purpose or motive other than harboring stolen goods, resisting arrest or destructing criminal evidence when commits violence to the victim or captors.Part Six elaborates the time and space condition of violence in the transformative robbery and its cognizance from the perspective of the crime stages in the occurrence of the violence in the transformative robbery and whether the violence is “on the spot”.Part Seven constitutes the conclusion and sublimation of this paper and the author elaborates the basic standpoint of this paper on the transformation of the transformative robbery from the perspective of the tolerant principle and the principle of the crime adapting to the punishment: 1. Only the pre-act which has the possibility to obtain property of large amount and holds this as the purpose can be transformed into the prerequisite of the transformative robbery; 2. the minor violence can not form the transformative robbery; 3. the property coveted by the pre-act is meager in value but the severe violence cannot be transformed into robbery; however the violence which causes the minor or serious injury to others may be handled as the intentional injury.