The Discussion On The Theft With Lethal Weapon

The Eighth Amendment to Criminal law has modified the provision of Larceny, and hasnewly added circumstances of adjudgement which including burglary, theft with lethalweapon and pickpocket without the restriction of larcenous amount. It marks the transition ofthe traditional legislative model of Larceny. The modification draws criminal law scholars’wide attention and arises discussion, including the reasons of criminalization and theapplication standards in judicial practice. The modification of Larceny has increased efforts toprevent theft crimes from occurring, and also has broadened the range of punishment. In orderto avoid applying the newly added provision improperly, we must grasp the standard ofconviction strictly. As to the theft with lethal weapon, when the larcenous amount is relativelysmall, it is very important to identify the lethal weapon and the carrying types, which servesas the key elements to ascertain the theft crimes. But we can’t find clear definitions about thelethal weapon and the carrying types in our Criminal law and Judicial Interpretations. It isnecessary to combine relative criminal theories and judicial practice experience to fix theiridentification criteria. From the angle of solving how to ascertain theft with lethal weapon injudicial practice, this article discuss the identification standards of lethal weapons andcarrying types, standards of accomplished crime and attempted crime, and relative problemsin ascertaining the crime in judicial practice. This article divides into four parts following toanalyze those problems.In the first part, I mainly summarize theft with lethal weapon. Firstly, in the view ofcomparative study, I summarize the criminal legislation in other countries. Then, tracing tothe sources of our country’ criminal legislation about theft with lethal weapon, I study themodification process of Larceny all previous. Furthermore, in the view of social harmfulnessand the purpose of criminal legal norm, I have analyzed the rationality of the legislativemodel, in which theft with lethal weapon is used as circumstance of adjustment. Thecriminalization of theft with lethal weapon is the realistic need of preventing theft crimesfrom occurring.In the second part, I mainly define the meaning of theft with lethal weapon. By methodsof linguistic analysis, case study and literature reviews, I give a detailed description abouthow to grasp the identification criteria of lethal weapon and carrying. Firstly, I define theconception of lethal weapon. As to lethal weapon, we must rely on the performance itself to judge whether the tool has obvious lethality, and whether it will bring realistic danger topersonal, property and safety. Secondly, this article discusses the conception and ascertainingstandards of carrying. To ascertain carrying, criminals could control the lethal weaponrealistically, and have clear understanding about carrying lethal weapon. The purpose ofcarrying lethal weapon is to commit crimes. As to the types of carrying, excluding express orimplied carrying or using lethal weapon. And there is no need to have intention of threateningor attacking someone momentarily.In the third part, I study the qualitative problem of theft with lethal weapon, involvingaccomplished offense’s standard of the crime of theft with lethal weapon. Firstly, by themethod of logical analysis, basing on the standpoint of theory of accomplished offense’sstandard, I elucidate the reasons why theft with lethal weapon belongs to consequentialoffense. It is ignorance to legislative techniques and violates the legislative purpose andaccomplished offense’s standard of property crimes, if considering theft with lethal weaponbelongs to behavioral offense. Secondly, in the view of theory of violation of legal rights, Istill regard the-out-of-controlling-theory as the standard to ascertain accomplished offense oftheft with lethal weapon, and the theory of substantial results as the standard of initiating atheft crime. And only attempted offense with gravity of the circumstances will be punished bypenalty.In the fourth part, I discuss some relative problems in ascertaining the crime, includingjoint crime, difference between snatching with weapon, how to deal with someone who theftwith weapon and also correspond with other provisions of Larceny, harmonized application ofthe thirteen of the criminal law code, the crimes number in ascertaining illegally holdingfirearms and theft with lethal weapon.The purpose of this article is to study the crime of theft with lethal weapon. Combiningthe basic theory of criminal law with relevant legislation, I have specified the identificationstandards of lethal weapons and carrying types, disguised crime and non-crime, completedand attempted of the crime, so as to provide accurate standard for the application of the crimein our country’s judicial practice.