Study On The Scope Of Attempted Theft Penalty

The perpetrator has already started to carry out the theft of public and private property, and is not successful because of the reasons beyond the will. On the basis of the punishment of attempted crime, there are subjective attempted theory, objective attempted theory and eclectic attempt, in our country, it is a struggle between the unification of subjective and objective. Comparatively speaking, the theory of objective attempt is the most reasonable, and should be used as the basis for the punishment of attempted crime in our country. According to the provisions of China's current criminal law, the punishment of attempted offense is also an objective attempt,but in the formulation of the provisions of the law, there is no attempt to carry out the theory of objective. Based on the standpoint of the objective attempt, the author agrees with the objective danger that the punishment of attempted theft should be based on the behavior of the person's behavior to the possession of public and private property.There are different provisions on the scope of punishment of attempted crime,there are three modes: the first is to give the punishment to all the attempted crime of intentional crime. The second kind is to give punishment to the attempted crime. The third is no matter what the crime attempted, only in the criminal law and other criminal laws and regulations are prescribed only under the conditions of punishment. From the perspective of China's criminal law, our country has taken the first legislative model,that is, all of the attempted crimes were punished, but whether the future should take second, third legislative model, it is worth thinking about. Based on the provisions of the current criminal law, the criminal law of our country is to take the penalty doctrine,therefore, the attempted theft should be punished.In 2013, two high "on the handling of some issues of applicable law in criminal cases of theft of twelfth explanation" the punishment of attempted theft of the rules,but the provisions not only failed to quell the practice in the debate, but the debate more intense. For ordinary attempted theft conviction standard, there are three main points: one is that only with a huge amount of property or national precious cultural relics such as the object of the crime of theft attempt should be punished for the crime,with large amount of property as the object of the crime is not punished for the crime of theft; two, in addition to a huge amount or the precious cultural relics, the theft of a large amount of property attempted, "serious" it shall be investigated for criminal responsibility; three, attempted theft should be "large amount" rather than "huge amount" as the starting point of all conviction, which attempted theft case, shall be strictly in accordance with the provisions of article twenty-third of the criminal law conviction and punishment. The author agrees with the third point of view, the attempted theft of ordinary, the amount of a larger standard to be held criminally responsible. In the beginning of theft, there are subjective theory, objective theory and compromise theory, the objective theory of internal and external forms of objective theory, objective theory. China's general view is that the subjective and objective view of unity, said the fact that there is no essential difference between the form and objective. Subjective theory, compromise theory and the form of objective theory have their own defects, the objective of which is to say the most reasonable. Based on the nature of the objective standpoint, theft has the urgent and specific danger of the loss of property of others, it is the beginning of theft. In theory, it is generally believed that the beginning of the search for property is theft". When determining when to produce the specific risk, the specific judgment should be made according to the type of theft.Crime "did not succeed" is another important standard of attempted crime. For what is the crime did not succeed, the academic community mainly has the purpose of crime,said the crime, said the results of the crime. Relatively speaking, the result of crime should be the most reasonable of the above theories. But as Zhang Mingkai said, on the various views did not succeed, I just literally differences may not be meaningful, to discuss the crime of "succeed", which may be accomplished, more practical significance, because no crime accomplishment is the attempted crime. What is the theft accomplished, criminal law scholars said, contact transfer, conceal said, loss of control, control, control, said (acquisition) and out of control. Contact said, transfer said, hidden said, loss due to its own defects, and gradually decline, and out of control said, control said, out of control and control said in essence, not two, but the control is more reasonable. In the understanding of "to control": one is the control of the two is irreversible, "control" no time, three is the criminal law on the "control" is not equivalent to physical possession, four is the control and out of control is the unity of opposites. In practice, it is to seize the "control" characteristics, and the specific analysis of the characteristics of the "control".For the special existence of attempted theft, theft crime special theory that has not attempted theft, special result crime theory that there is attempted, the author agrees with the results also make special theft, there is attempted The special attempted theft conviction standard, there are two main points: one is that special means of theft theft crime is a special standard, special attempted theft only in sentencing lighter or mitigated; two, special attempted theft only with the 2013 twelfth interpretation of"serious" situation, it shall be investigated for criminal responsibility. I agree with the first view,the special means of theft theft crime is a special standard for special theft,"home" and "lethall weapon" plot plot, "steal" the plot can be held criminally responsible. Special theft should adhere to the objective substance, in order to start looking for property for theft, but when the danger is determined,according to the specific circumstances of specific types of theft to make specific judgments. For special theft of attempted distinction must be based on the nature of the property, shape,size, the victim's possession of the property, the behavior of people to judge the state of theft and so on.Finally, from the perspective of practice is conducive to the unification of the attempted theft of the scope of punishment, should be on the provisions of China's criminal law twenty-third on attempted crime punishment to be clear, should be deleted on 2013 judicial interpretation of the provisions of the first paragraph of article twelfth.