Discuss On "Crime Of Public Theft"

The crime of theft is a crime which is common and multiple.The objective manifestation of criminal behavior and the means of crime present a variety of characteristics,and with the time past,there are many new changes have appeared right now.It's also lead to the traditional theory of theft that is “Secret Stealing Theory” defining the crime of theft is being insufficient to cope with the new situation.In this context,the “Public Stealing Theory” came into being.The “Secret Stealing Theory” has been a general theory of theft crimes in our country's academic and practical circles,the traditional theory said that “secretly theft” is a unique behavior of theft crimes,that “secretly” is an essential element of the crime of theft.Although the general statement is supported by the relevant judicial interpretation issued by our country in 1998,but according to the current criminal law's legal provisions on theft crimes,it can't be concluded that the theft acts must be conducted in secret.Looking at the laws and regulations related to foreign theft crimes,many countries' criminal laws don't stipulate that theft crimes must satisfy the secret characteristics of the behavior: the relevant laws in the United Kingdom and the United States haven't determined that theft should be carried out in secret,Germany and Japan believe that the act is publicly can also constitute the crime of theft,it can be seen that the “Public Theft Theory” has been legally approved by major countries in the AngloAmerican law system and the civil law system.In recent years,many domestic scholars based on social reality related cases,such as “the case of Zhou Mouhong” and “the case of Xie and Xie Moujun” and other theft cases without secret characteristics,to propose the “Public Theft Theory”.As the traditional theory the “Secret Theft Theory” face to the double challenges from the theoretical circle and judicial practice,because of that,the argument between the “Public Theft Theory” and the “Secret Theft Theory” has begun.The focus of the controversy by the two theory is mainly about how to define behaviors that “violate the will of the victim and use the peaceful means to take away the property publicly”.The scholars who hold the view of“Secret Stealing Theory” believe that since the victim's property is obtained publicly,it can't be evaluated as a crime of theft,so the behavior is considered to be peaceful,and the behavior have no secret characteristics,so it should be evaluated as robbed.The scholars who agree with the “Public Stealing Theory” are believe that if the above-mentioned behavior is evaluated as the crime of snatching,it will cause the result in over-evaluation.And the secret theft is just a common manifestation in the crime of theft,not all crime of theft is secretly theft,to commit an act that infringes upon someone's property publicly can still constitute the crime of theft,as long as it conform to the requirement of peaceful means.Therefore,it is considered that the above-mentioned behavior is an act of publicly theft,there is no doubt that the behavior isevaluated by the crime of theft.So compared with the “Secret Stealing Theory”,the “Public Stealing Theory” is more theoretically reasonable,using the crime of theft to evaluate “publicly theft” is conductive to guide the judicial practice comprehensively,it also has important practical significance and availability.