The Judicature Cognizance Of "Burglary"

“The eighth amendment to criminal law” has convicted the act of burglary as an independent crime, which can strengthen the linkage protection of the rights to adequate housing and property rights for citizen and strike the high risk to an act of theft effectively. However, because of great changes taken place in traditional crime constitutions and the threshold of conviction becoming low at the same time, it also brings new challenges to the judicial practice. In practice, the nature of a crime and whether the burglary establishing or not is decided by three crucial factors which include the characteristics of “household”, the understanding of relationship between "in-door" and "theft" and the judgment of doers' subjective intention. Although the judicial interpretation issued by the Supreme People's Procuratorate and the Supreme People's Court has explained the specific definition of burglary in 2013, it didn't make clear the explanation of key words thereof. As a result, it made the judicial and theoretical circles into cognition confusion and the different verdict in the same kind case occurred frequently. The paper plans to make a qualitative research about “the theft of Wang et al.” on order to analyze the conviction purpose of “burglary”, explore the characteristics of "household" and clarify the complex relationship of “in-door” and “theft” so as to put forward how to standardize the application of the “burglary”, which can provide feasible advice for the judicial workers to deal with similar cases in the judicial practice.This article has about 20000 words and can be divided into four parts as follows:The first part is the basic situation of the case. First of all, it introduces the cause of action, the condition of the case, the divergent views and the focus of disputes. Besides, it states three different opinions about the case that the Wang et al. slipped into the ancestral hall to steal a stone carving, from which, the paper points out the focus problems of the case, which is whether the residence connecting to the ancestral hall can be identified as "household", and whether going through this “household” to steal outdoor property can be convicted of burglary.The second part is about the legal analysis of the related problems. This part is mainly divided into three aspects: Firstly, it deeply investigates why burglary should be published, and states the legislative position change of lawmakers as well as the sense why new theft should be convicted. Secondly, studying the literal meaning of "household", academic point of view and legal connotation, on this basis, it sums up the characteristics of “household”, to be specific, “household” refers to the residence which occupied by habitant, lived to the meaning of family life and regarded as the kingdom of personal because of relative isolation with the outside. The household has five characteristics including the privacy and exclusivity, domestic, closure and long-term fixed. Finally, carefully studying the relationship between “household” and “theft”, it points out that “burglary” neither belongs to implicated offence nor belongs to absorbable offence, in addition, "household" and “theft” as the two aspects of burglary should be an integral whole, both of those have the consistent subjective purpose and identical place.The third part is the research conclusion of this case. It mainly analyzes from three aspects to get the conclusion that the action of Wang et al. cannot be convicted of “burglary”. Firstly, the ancestral hall which stolen by Wang et al. is belonging to public facility, so it doesn't have closure and privacy. Next, the ancestral hall is joint property of the family, which doesn't have absolute exclusiveness. Besides, the ancestral hall does not meet the domestic criteria, because main function of that is used for sacrificial activities. Lastly, there are door and wall between the ancestral hall and the next tenants, which are independent of each other, so the ancestral hall cannot be identified as “household”. Secondly, analyzing the main criminal purpose of the actor we can get the conclusion that Long-Feng stone carving is their target, and that their subjective intent is to steal outdoor property, so that it is not in conformity with the subjective requirement of “burglary”. Thirdly, we affirm that the behavior of Wang et al. is not belonging to “burglary” form discussing the legal interest of burglary. In this case, Wang et al. go through three processes, which are into the household—out of the household—stealing. We can find that rights in the case are divided into several parts. Because residence rights and property rights are not violated meanwhile, it does not meet the requirements of the legal interests of “burglary”.The fourth part is the research revelation of the case. Combined with Chinese current criminal legislation about “burglary” and relevant judicial interpretations, the author thinks that it can regulate “burglary” from two main aspects. On the one hand, we should clearly definite the judicial explanation of “burglary”. On the other hand, on the basis of convicted causes of “burglary” and related law articles, we will grasp related issues of burglaries comprehensively.