Analysis of theft and robbery cases

Theft and robbery are similar in behavior, both aiming at illegal possession of public and private property, and both have the behavioral attributes of "stealing" and "taking people unprepared" Because of the similarity of the two crimes, there are differences in conviction and sentencing between this crime and that crime in many judicial practices, and even the same crime can be applied when it is characterized as a crime. Therefore, in judicial practice, the charges of two crimes can be applied anywhere.

Let's look at a case as follows:

A strange man entered a tobacco hotel facing the street, claiming that he wanted four soft Chinese bars and a small amount of high-grade wine, and asked his boss to issue an invoice. When the owner A took out four Chinese cigarettes and wine from the container and put them on the counter, and then turned to invoice, the man lied to the owner that he was driving outside the store, so he suddenly picked up four soft Chinese cigarettes and fled. The owner found that the situation was wrong and immediately drove them out of the store, but the suspect A had an accomplice to meet him outside the store.

In this case, the public security and procuratorial organs have differences on the nature of the crime, and two different views have emerged.

Viewpoint one thinks that A is suspected of robbery. First of all, A aims at illegal possession. Although there is a behavior plot of lying about driving outside the store, at this time, the owner holds high-grade tobacco and alcohol, and the behavior of the owner taking out cigarettes shows that he has delivery behavior, but he lacks delivery consciousness. In this state, the criminal suspect took advantage of the shopkeeper's unprepared, knowing that taking cigarettes in this case would be discovered by the shopkeeper at the first time, and still took away the cigarettes and alcohol closely possessed by the shopkeeper by sudden seizure, which is in line with the criminal constitution of the crime of looting.

Another view is that A is suspected of theft. When the shopkeeper turned to give him an invoice, A stole the cigarettes on the counter under the pretext of going out to drive. Although the shopkeeper was in a state of hiding cigarettes at close range at this time, the perpetrators stole cigarettes secretly when the shopkeeper turned to invoice him. Although the shopkeeper immediately discovered A's behavior, and A's secret theft was also short-lived, at this time, A had independently occupied alcohol and tobacco, which constituted theft, and the chasing behavior of the shopkeeper behind did not affect A.

The author agrees with the second view. Conceptually speaking, the crime of robbery refers to the act of directly seizing a large number of public and private property closely occupied by others on the spot for the purpose of illegal possession, or repeatedly robbing. Theft refers to the act of stealing a large amount of property occupied by others for the purpose of illegal possession, or repeatedly stealing, burglary, theft with a weapon and pickpocketing. The protection interests of robbery and theft are the same, both of which are the possession and safety of public and private property.

First of all, due to the similarity of the two crimes, the boundary between the two crimes is blurred in judicial practice, and the main reference bases in judicial practice are:

(1) Distinguish between theft and robbery according to the secret duration of the perpetrator's crime. If it is kept secret for a long time, it will be regarded as theft; Otherwise, it will be regarded as robbery. This statement can also be expressed as how long it takes the victim to find the property loss. If the victim can find it on the spot or in a very short time, it can be regarded as robbery, otherwise it can be regarded as theft. Then, according to this statement, why does the nature of the case depend on whether the victim finds it? In other words, when the perpetrator completed all the elements of the crime by theft, and the victim found it on the spot, the perpetrator's theft automatically turned into robbery? This view is hard to accept. Back to this case, there is a problem that the secrecy of the behavior of the actor in obtaining property lasts for a short time. This statement has obvious defects, and the secrecy of pickpocketing lasts for a short time. Victims can generally find property stolen in a short time, but in practice, no one opposes theft.

(2) This is also the case in reality. When the actor obtains property by peaceful means, his subjective consciousness is not clear whether to steal or rob. The perpetrator knew that if the victim found out his behavior, he would take the form of robbery. If the victim doesn't find out, he will take the form of stealing. Therefore, the qualitative problem of a case often depends entirely on the confession of the suspect after the crime. Because of the randomness and variability of confession, the nature of the case is subjective.

Therefore, the zoning standards for robbery and theft can start with the following points:

(1) Legally. The criminal law stipulates that the circumstances of robbery are serious, especially serious, while for theft, compared with robbery, there are no other serious circumstances except similar provisions on the amount of crime. Therefore, in case analysis, robbery has the general danger of causing casualties, while theft does not have such characteristics. In this case, the perpetrator took the opportunity to escape by stealing cigarettes, and the accomplices outside the store drove to meet him.

(2) Starting with the concept of robbery. The crime of robbery refers to directly seizing a large number of public and private property that others have close possession on the spot. Conceptually, we can get the following key information: "On the spot" refers to the time node of criminal behavior, and without time continuity, the parties can find it immediately; "Close possession" is the property owner's description of the state of property possession, which can be understood as property closely related to the body, such as shoulder bag, bag in hand, property in pocket, etc. In this case, although the cigarettes were placed on the container and the owner possessed them independently, the possession status did not reach the level close to the owner's body. In other words, the suspect's behavior will not cause certain danger to the owner's personal safety and does not have the behavioral characteristics of robbery; "Seizure" means that the actor takes possession of property by violence, that is, he does not take possession of property by peaceful means. In this case, the perpetrator took possession of cigarettes in a peaceful way, which did not reach the level of violent violation of property in robbery crimes.

(3) Starting with the behavior pattern of the crime of robbery. The most essential difference between the crime of looting and other crimes against property is that the crime of looting is "openly seizing". The so-called open robbery means that the actor takes public and private property and runs away without precautions in front of the owners and managers of public and private property, and takes it for himself; There are also ways for victims to find out immediately and take property openly, but without using violence or threats of violence. Therefore, robbery does not take "grab and run" as an important element, theft may also "steal and run", and robbery may also have the possibility of "grab and run". In this case, the suspect stole it and ran away. At this time, he has taken the property for himself, which constitutes theft. However, the pursuit of the victim after discovery does not affect the identification of his theft.

(4) The targets of crimes are different. Theft and robbery are also very different in the object of crime. The object of theft can be tangible property, property interests and other intangible property, while the object of robbery can only be tangible property.