Understanding And Application Of Judicial Interpretations On Crime Of Theft

The crime of theft is the oldest and the most common charge in the criminal offense and one of the charges with most controversies. Especially in the new situation, the Amendment(VIII) to the Criminal Law of the People's Republic of China makes great changes to the crime of theft, adding pick-pocketing, repetitious theft, and burglary, but there major differences in the specific judicial application. Subsequently, the Interpretations to Several Issues in Law Application of Theft Criminal Cases are promulgated, which add the provisions on the offense with theft criminal record and half in standard amount of administrative punishment into incrimination, but the Interpretations fail to make interpretations on repetitious theft. This series of regulations all accord with the requirement of current economic development, thus more conducive to better crackdown on the crime of theft, but it is required to make practical exploration into application of the provisions into specific theft cases.Through the real case met in judicial practice, this paper analyzes three disputes in the, including the cognizance on repetitious theft, recognition on accomplishment standard of theft and repeated assessment on theft record. This paper begins with the disputes in the theft case, elaborates the controversial opinions, combines the analysis on the criminal theoretical circle, concludes a reference standard for the judicial practice proposes the promulgation of relevant interpretations, and clarifies the confusion in practical application. This paper is composed of four parts.Part One briefly introduces the information of the case and concludes three disputes in the case according to the main controversial opinions.Part Two develops analysis jurisprudence analysis around the disputes in the case, which includes: one, where repetitious theft is recognized on the basis of several acts, it is required to define and analyze the time and space of repetitious theft; two, the accomplishment of stealing after smashing the vehicle with high occurrence case at present shall be recognized according to attempt and accomplishment in the general provisions in the criminal law as well as the accomplishment standard for crime of theft in common theory and it is required to analyze the accomplishment standard for crime of theft in combination with the provisions of “based on the principle of control and concurrently on out of control” in Chongqing judicial practice on the cognizance on accomplishment standard for crime of theft; three, where the offense is sentenced into criminal penalty for crime of theft in the theft case according to the provisions in the judicial interpretations on theft, no exceeding five years of the interval between the latter offense and the former offense will make the practice of the application of law in a dilemma and thus it is necessary to forbid repeated assessment on the basis of the principle of banning repeated assessment in foreign countries as well as the interpretations on banning repeated assessment in the legislation.Part Three elaborates the analysis and conclusion of the case. This part draws the author's handling opinions on the case in combination with the jurisprudence analysis in Part Two, including the following three points, one is to make case-by-case study and correctly recognize “repetitious theft” in combination with the cognizance on repetitious theft in the interpretations on seizure and robbing; two is to uniformly strictly abide by the control theory and master the accomplishment standard for crime of theft where there is no explicit provisions on the adoption of out of control theory to recognize the accomplishment standard for crime of theft, thus, to adopt the control theory to the cognizance on the accomplishment standard for stealing after smashing the vehicle; three is that the assessment on theft criminal record and recidivism violates “the principle of banning repeated assessment”; however, in combination with the provisions of the general rules of the criminal law on recidivism, should the two offenses are intentional and sentenced to set term of imprisonment and the interval is within five years and conform to the constitutive elements of recidivism, such offenses shall be recognized as recidivism but may not be given a heavier punishment.Finally, this paper comes to the enlightenment through relevant analysis on the case. In combination with repetitious theft, theft accomplishment and the principle of banning repeated assessment, this part concludes that Ke's act does not constitute “repetitious theft”, the act of smashing the vehicle belongs to theft attempt and Ke's criminal record has been taken as incrimination standard and after Ke has been recognized recidivism and may not be given a heavier punishment.