The Discussion Upon "Carrying A Lethal Weapon To Steal"

The Amendment(VIII)to the Criminal Law of People's Republic of China that has become legally effective on 1 May 2011 makes big changes to “theft crime” stipulated in Article 264 of Criminal Law of the People's Republic of China,i.e.,adding three theft acts—burglary,carrying a lethal weapon to steal and pickpockets—that commonly and frequently occur,and concurrently abolishing the original restrictions upon the criminalization criteria of theft crime based on the burglary amount.This amendment of taking “carrying a lethal weapon to steal” into the Criminal Law indicates that this law protects not only the citizens' property safety,but also their corresponding personal rights.Adding the citizens' personal safety into the scope of protection under theft crime enables relevant provisions regarding this crime to be more comprehensive and strict.In order to effectively enforce this amendment,Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning the Application of Law in the Handling of Criminal Cases of Theft of April 2,2013 further designs certain clauses related to its specific application.However,certain issues still keeps open,such as the definition of “lethal weapon” and “carry”,and the determination of whether the steal act carrying with a lethal weapon is kind of conduct crime or outcome crime,which still exists great divergences in both theory and practice.This,in turn,results in different standards and decisions of judicial judgment.Therefore,this paper,based on the theoretical research and case study,will focus on discussing these controversial issues and try to submit some opinions and advices,in order to better define this act and facilitate judicial applications.Specifically,apart from the Sections “Introduction” and “Conclusion”,this paper is totally divided into four sections: Section one starts by introducing the legislation revolution and modification about the theft crime,and then analyzes the significance of taking “carrying a lethal weapon to steal” into the Criminal Law,and also introduces the exact issues needed to be discussed.Section two mainly studies the definition of “lethal weapon” and “carry”.This part will firstly analyze relevant doctrines and practical disputes,and then come up with three standards to identify “lethal weapon” via comparing the relationship between “lethal weapon” and “crime instrument”.Also,based on comparing the relationship between “carry” and “hold”,this part suggests that the identification of “carry” shall be carried out form both subjective and objectives aspects.Sections three's main task is to study the determination over whether or not the act of carrying a lethal weapon to steal constitutes a crime.After assessing both domestic and abroad doctrines on conduct crime and outcome crime,this paper believes that such act shall be regarded as outcome crime,and the determination standard different from traditional amount-style one shall be adopted.Moreover,the proviso described in Article 13 of Criminal Law still has room to apply.Section four mainly intends to discuss other issues concerning “carrying a lethal weapon to steal”,for instance,how to deal with the situation where several crime patterns are simultaneously applicable,and its comparation with “carrying a lethal weapon to steal”,as well as the accomplices of theft crime.