The Negation Of Peaceful Theft Theory

Larceny,as one of the oldest crime, has a long history in our country. In China ’s traditional criminal law theory,theft has formed a relatively complete theoretical system, especially the "secret theft" as the most essential feature of the larceny objective elements, as an important basis for larceny from other property crimes(especially snatch crime). This theory has become a point of view of the present in our country, And was supported by the criminal law practitioners and theorists vast majority of experts and scholars.However, influenced by foreign as well as the theory of criminal law in Taiwan, in recent years,Some scholars have been redefined for Larceny, and put forward a new standard. They denied "the secret theft theory," proposed "the peace theft theory",set new boundaries of theft and other property crimes.But this article argues that,the critical of peace theft theory said to secret theft lack of reasonable basis, Its not sufficient, and its also has a lot of difficult question to answer. Therefore, this article will respond and negative criticism against the peace theft theory, the purpose is to continue to keep the secret theft theory.The structure of this article is divided into three sections:The first chapter states the views of the peace theft theory and the secret theft theory,clarify their different perspectives,and then further to explore the essence of the controversy.Although the focus of controversy in their definition has a different understanding. However, the essence of two controversial theories is divided to different standards.The second chapter grasps the theory and practice basis of the peace theft theory, to a detailed and in-depth analysis for the peace theft theory. There are the following reasons:First from the literal interpretation perspective, theft behavior can not only has a secret, and at the same time should also include the " Blatant theft ”. Second the peace theft theory has legislative history basis and realistic legal basis.Third the views of peace theft theory Is the correct interpretation of the concept of time and the concept of Justice. Fourth the peace theft theory has sufficient basis, and also got a lot of support from Taiwan scholars. Fifth the peace theft theory meet the need of judicial practice.The second section is to introduce the seven aspects criticism to the secret theft theory proposed by the peaceful theft theory, and respectively to make a detailed and comprehensive anailsis of the eight aspects criticism to the secret theft theory. These seven aspects including: confused the difference of subjective elements and objective elements, contrary to the subjective and objective consistent point of view, lead to contradictory of certain cases, lead to unreasonable results, can not constitute the Larceny accomplished the lack of objective elements, why the lack of confidentiality can be automatically evaluated to snatch, inappropriate expansion of the scope of robbery.The third chapter is to clarify and maintain the secret theft theory.On the one hand, this article will responding to the peace theft theory ’s criticism for the secret theft theory, respectively, in order to maintain the secret theft theory.On the other hand, this article will criticize and refute the peace theft theory by five aspects, and the purpose is to deny it.