Research On The Issue Of How To Apply The Statutory Punishment Of "Robbery By Military Or Police Personnel"

Robbery is a common in the judicial practice in violent crime,this crime is not only a serious violation of the citizens' rights to property,but also infringes the personal rights of citizens,so first as a violation of property crime,especially the aggravating circumstances robbery has more serious social harmfulness.Therefore,all countries treat robbery as a target object.1997 of the criminal law in China listed "pretend to be military or police personnel robbery" as one of the eight kinds of statutory aggravated punishment robbery.But with the continuous development of theoretical research and judicial practice,there is no clear provisions of China's criminal law about how to apply the statutory punishment to the real military or police,so the theory had a big disagreement: legislative theorists think that belongs to the legislative defects,under the provisions of the criminal law have to apply basic punishment;Explanation argues that can be explained through the explanation of criminal law,maintain theorists believe that the current criminal law is reasonable.In the judicial practice the judiciary also cannot agree.At the same time,similar problems are also difficult problems in criminal law theory,such as "illegal manufacture guns","hijacked the train" and "spoiled child",there is no specific provision in the criminal law,but its social harmfulness is more serious than the behavior of the criminal law specific provision for the crime,to solve these problems how to apply the statutory punishment is also a difficult problem to be solved.Therefore,in this context it is necessary to research how to apply the statutory punishment,it is not only necessary to solve this problem,at the same time it also have certain reference significance to solve similar problems.This paper will be divided into five parts besides introduction and conclusionThe first part of this paper is the overview of "robbery by military or police personnel",mainly include the status quo of legislation,the judicial confusion,reasons of lack of legislation and the scope of "military or police personnel",for the following discussion.The second part mainly discusses how to apply the statutory punishment of "robbery by military or police personnel" of the mainstream views existing in the theoretical circle,mainly include the theory of legislation,interpretation and maintain theory.By different scholars point of view,in the different point of view the comparison,on the basis of analyzing,the author tries to summarize the three mainstream view of the differences and relations,the theory premise of legislation and the theory of interpretation have a common basis,namely " military or police robbery " than " pretend to be military or police personnel robbery " more serious in social harmfulness;But the idea of the maintain theory is just the opposite.The third part mainly discusses the "military or police robbery" and "pretend to be military or police personnel robbery" in social harmfulness is light or heavy,mainly from illegality cognition,crime situation,social influence,natural characteristics of robbery,the crime rate and the detection rate of these aspects to explore the social harmfulness,the author's point of view is that the former more serious in social harmfulness,and to deny maintain theory's point of view.The fourth part mainly discusses the theory of explanation,explanation theory mainly includes expanding interpretation and certain explanation,through the explanation for expanding explanation path analysis,the author thinks that the expanding explanation may be analogy explanation;Through the certain explanation based on the analysis and process of reasoning,the author thinks that this view of "for light to heavy" is a good way to solve this problem,but also does not violate the principle of legally prescribed punishment for this kind of explanation,of course,at the same time can also to solve similar problems.The fifth part mainly discusses the legislative Suggestions on the legislation theory,through analysis and comparison of different legislative Suggestions on legislative theorists,it is concluded that the author agree with one point of view,and at the same time,the author thinks that is simple for a specific problem put forward the legislative Suggestions,we should improve the level of legislation technology,in order to reduce the legislative loopholes.