In recent years, pickpocketing has become a hot issue that affects the stability of social security and people's sense of travel safety, and this kind of crime has great social harm and is directly related to the stability of people's lives and society.

First, pickpocketing is a behavior crime, not a amount crime. There is no amount requirement, and whether to convict or not is not based on the amount.

The amendment of criminal law incriminates pickpocketing because pickpocketing is rampant in practice. Many pickpocketing cases can't meet the filing standard of theft, so they can only be given administrative punishment, which leads to many recidivists, arrested and released, and pickpocketing is rampant. The people have great opinions on the light handling of pickpocketing cases. Referring to public opinion, the legislature stipulates that pickpocketing constitutes theft, but it does not stipulate that the amount is large or the circumstances are serious. Judging from the legislative background and the expression of the criminal law amendment, pickpocketing is obviously an act crime, that is, as long as pickpocketing is carried out, it constitutes a crime and there is no requirement for the amount. Pickpocketing a dollar can also constitute theft.

At the same time, Procuratorial Daily published Director Chen Guoqing's interpretation of the new explanation of theft, pointing out that pickpocketing has no amount standard, but it can be convicted by applying the proviso of Article 13 of the Criminal Law. I agree with that. However, the proviso is the general principle of criminal law and can be applied to all crimes in the specific provisions, including pickpocketing and theft. However, the author believes that whether the circumstances of pickpocketing are obvious or not depends not on the amount of pickpocketing, but on whether the pickpocket has just turned 65,438+06 years old, whether he has been instigated or coerced, whether he has committed an accidental crime for the first time, and whether he is forced by his livelihood. That is to say, if the amount of pickpocketing is only one yuan, but the pickpocket is an idle person, or pickpocketing again, or organizing others to pickpocket, especially those who have a criminal record, they should be punished as crimes. Even if the amount of pickpockets reaches several hundred yuan, pickpockets are young and ignorant, or cheated or coerced, or commit crimes for the first time because of a moment of confusion, or forced by life.

Therefore, whether the pickpocket is convicted or not, the amount does not need to be considered, because most pickpockets are aimless, and whether others have money in their pockets or how much they have is unpredictable. The amount of pickpockets' income is only the result of their behavior. This result is not determined by pickpockets, but depends entirely on them. Luck Therefore, taking the amount of pickpocketing as the main consideration of conviction is actually an objective imputation. What really reflects the subjective malignancy of pickpockets is the age of the perpetrator, whether he has a criminal record, whether he was instigated by others, and whether he was forced by his livelihood. Whether he is convicted or not, these plot factors should also be the main consideration.

Second, there is generally no attempted theft in pickpocketing cases, and attempted theft is only established if the pickpocketing behavior against specific property fails.

In Explaining Mysteries by People's Procuratorate, Professor Zhang Mingkai thinks that if the perpetrator pickpocketed other people's pockets and got only one yuan, it should be regarded as attempted theft. I think this is debatable. As mentioned above, pickpocketing is a crime, and as long as it is committed, it constitutes a crime. Because there is no amount requirement, there is generally no problem of attempted theft. In other words, if the perpetrator carries out pickpocketing, it will also constitute a crime, not to mention stealing one yuan.

Why do you think so? As mentioned above, how much property a pickpocket can steal depends entirely on the perpetrator. Fortunately, most of the time, the perpetrator pickpocketed the victim's pockets and bags, not the specific property. Therefore, the criminal law should blame pickpocketing itself, not the consequences of pickpocketing. As long as pickpocketing is carried out, theft is established, and there is no problem of attempted theft. Even if the act of pickpocketing is not completed, for example, the perpetrator reaches out for pickpocketing and is caught just touching the victim's pocket, or is caught before taking out his hand, there is still no attempted crime.

Another reason for not establishing attempted crime is that it is not feasible to identify attempted crime. According to the criminal law, if a crime is attempted, it may be given a lighter or mitigated punishment according to the completion of the crime. If pickpocketing fails, or only one yuan is stolen, and the theft is determined to be attempted, how much lighter or mitigated punishment shall be given according to the completion? Without a comparable amount of punishment, it is impossible to apply the provisions of lighter or mitigated punishment

Therefore, there is only one case of attempted pickpocketing, that is, the perpetrator pickpocketed certain property such as laptops, gold and silver jewelry, and was caught in the process of pickpocketing, or was caught in the process of escaping after pickpocketing, which led to the failure of theft. In this case, the amount of attempted theft is based on the value of the specific target property or the value of the specific property obtained, and the punishment can be lightened or mitigated according to this standard.

Three, pickpocketing cases should be sentenced to hell to pay the price, in principle, will be prosecuted, and in principle should be sentenced to actual punishment.

Many people believe that those convicted of pickpocketing cases should also implement the criminal policy of combining leniency with severity and prosecute cautiously. The author believes that, on the contrary, all cases convicted of pickpocketing should be severely punished, and it is not appropriate to make relative non-prosecution. If a lawsuit is brought to the court, the court should not sentence him to be exempted from punishment, suspended sentence or a single fine, but should sentence him to one to three years of actual punishment.

Personally, the author has always held the concept of light punishment, but why do you think that pickpocketing cases should be severely punished? There are two main considerations:

First, the use of heavy penalties for pickpocketing is a last resort. Criminal law is the last means of social governance. Criminal law can only be used when necessary, and so is pickpocketing. Because other measures to control and prevent pickpocketing are weak, ask the masses to cover their pockets tightly? Tell the masses not to bring cash or valuables to the streets? Tell the masses to try not to go to crowded places in public? Or are security guards everywhere in public places? The preventive measures that can be taken are nothing more than these, but they are unrealistic. The only way to deal with the stubborn problem of pickpocketing is to intensify the crackdown of criminal law, give severe punishment, increase the cost of pickpocketing and curb the impulse to commit crimes. Because the probability of pickpockets being investigated is limited, only by increasing the severity of each investigation can pickpockets feel the pain of the skin, feel that it is not worth the loss, and give up their criminal thoughts after weighing the pros and cons.

Second, if pickpocketing cases are dealt with lightly, it is difficult to achieve the conviction effect and waste judicial resources. According to the explanation of the person in charge of NPC Law Committee, the main purpose of punishing pickpockets is to crack down on some pickpockets who have become a habit of stealing and take stealing as their profession. If the case of pickpockets is excessively applied without prosecution, or if the court is too severe in sentencing, the pickpocket will not be detained, or his personal freedom will be restored soon, and he can start pickpockets again. This is no different from catching pickpockets before going to prison and letting them go, and there is no difference between letting them go and catching them. Rampant pickpocketing is still unstoppable. Moreover, before entering the prison, the administrative punishment efficiency of public security organs is very high, and taking criminal proceedings will consume a lot of judicial resources, but in this way, the perpetrator will return to his old job in a few days, and the human, material and financial resources invested in the judiciary will become meaningless.

Therefore, since the criminal law criminalizes pickpocketing, the judicial organs must strike hard and not be soft. Every one of us may become a victim of pickpocketing. Pickpocketing suffers not only material losses, but also endless troubles caused by the loss of various documents, magnetic cards, materials and other important items. This kind of mental injury can't be calculated by money, which is the biggest harm of pickpocketing compared with other thefts. Therefore, the conviction and sentencing of pickpocketing cases should not only look at the amount, but also consider the mental damage suffered by the victims. In this way, it is natural for hell to pay compensation for pickpockets.

Right? Pickpocket? Understanding of the Eighth Amendment to China's Criminal Law; pickpocketing is regarded as a special type of theft after being punished. Consequential offender? Change to? Behavior crime? Any case of pickpocketing, regardless of the amount of stolen property, is treated as a criminal case. In the absence of specific provisions in the law, there are some disputes in judicial practice on how to determine the conviction standard and attempted form of pickpocketing, and how to correctly understand the fourth paragraph of Article 3 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Theft (referred to as Fa Shi [2013] No.8).

First, in pickpocketing? Personal belongings. Understand.

Generally speaking, pickpocketing is stealing the belongings carried by others. But what? The scope of personal belongings is still controversial. Although it is generally believed that property must be within the control and control of the victim, should control and control expand understanding or limit understanding? Some people think that property should not be limited to literal contact with the victim's body? Carry it with you? In essence, the victim's property should also include what the victim can control, including the property within his sight. In the trial practice, the author does not agree with this view, and prefers to think that the perpetrator's property should be limited to the property in the victim's pocket, the jewelry worn by the victim and other property that is in close contact with the victim's body. The main reasons are as follows:

First, it is generally believed that? Pickpocket? This is a criminal act. If so, it is equivalent to opening the mouth of theft to the limit. If we don't narrow down the explanation of pickpocketing, the intensity of the crackdown will far exceed the range that the current society can bear. The level of social crime rate has a great relationship with the strictness of a country's laws. Therefore, the strictness of a country's laws should adapt to the country's current economic and social development and should not be divorced from the current social reality. If the social relations that can be adjusted by other legal departments are transferred to criminal law for adjustment, it will greatly break the balance system of a society. Therefore, we should not attack the excessive pickpocketing in the Eighth Amendment to the Criminal Law, but should make a narrow interpretation.

Second, pickpocketing not only damages the victim's property rights and interests, but also poses great potential danger to the victim's person. Say goodbye to the sea? Pickpocket? Defined as? Stealing other people's money? Literally, it is limited to other people's belongings. On me? That is to say, it must be property that is in close contact with other people's bodies, otherwise it cannot be called? Pickpocket? . Therefore, it is considered that the property that can be actually controlled by the victim but separated from the victim's physical contact is the scope of pickpocketing, which is divorced from the original legislative meaning and should not be adopted. What are money and things on others? In the trial practice, it is considered that the clothes and jewelry worn by the victim are in close contact with the victim's body. Because only when some kind of property is in close contact with the victim's body, it will cause potential danger to the victim's body that can be turned into reality at any time, so the criminal law stipulates this kind of crime as behavioral crime. Once this kind of behavior is carried out, the personal safety of the victim will be in jeopardy.

Third, because pickpocketing itself contains? On me? Property must have direct contact with the body, and pickpocketing must have violated the victim's privacy and had intimate contact with the victim's body that is impossible for ordinary strangers. In the trial, there were many passengers on buses and passenger trains. Because there are many passengers in this place, there may be some contact between passengers, such as coats and handbags, but the things in the coat pockets and the parts inside the coat cannot be in direct contact with the outside world. Therefore, when pickpocketing is within this range, it violates the privacy of the victim. Therefore, the Eighth Amendment to the Criminal Law is so harsh on pickpocketing. Therefore, the author believes that if the carry-on bag and the property in the bag are included in the box, bag and other property that have certain physical contact with the victim, it is not just a deviation? Pickpocket? The original meaning of this word can't really distinguish pickpocketing from ordinary theft. Only by considering whether the victim's privacy has been violated can we really distinguish pickpocketing from general theft. Pickpocket? It is only a special kind of theft in the real sense, which belongs to the theft in Article 264 of the Criminal Law and conforms to the legislative system structure. Otherwise, as soon as pickpocketing is started, pickpocketing cases may be more common and common than ordinary theft. Therefore, from the perspective of system interpretation, the author thinks that the scope of this kind of property should also be limited to the property in the pocket of the clothes worn by the victim, the jewelry worn by the victim and other property that is in close contact with the victim's body.

Second, whether pickpocketing is a crime.

The Criminal Law Amendment (VIII) will? Pickpocket? As an independent theft, it is directly included in the punishment scope of criminal law, which is divorced from the standard of large amount of ordinary theft. However, to investigate the criminal responsibility of pickpocketing, we should not only consider the overall composition of the crime, but also consider the social harm of the behavior, so as to adapt the crime to the punishment. The criterion for judging social harmfulness is mainly the legal interests infringed by criminal acts. Theft, as a crime against property, infringes on the legal interests of the property owner, and the direct expression and measurement standard of property loss is the amount. Therefore, if the perpetrator pickpocketed a very small amount of property objectively, or subjectively only wanted to deliberately pickpocket a very small amount of property, he should not be convicted and punished despite pickpocketing. Therefore, whether we can convict pickpocketing should not only consider the unity of the general and specific provisions of criminal law, but also consider the social harm of the act itself, so as to comply with the provisions of Article 13 of the general provisions of criminal law. If the circumstances are obvious, minor and harmless, it is not considered a crime? The provisions of the criminal law also reflect the modesty requirements of the criminal law.

Third, is pickpocketing in the form of attempted crime?

The view that all attempted pickpocketing should be criminalized can be said to be caused by different understandings of the classification of pickpocketing crimes. Many scholars and legal workers classify pickpocketing as behavioral crimes. The so-called behavioral crime refers to the crime that the completion of the infringement is the condition for the completion of the crime, while the corresponding consequential crime refers to the crime that was established after the infringement result appeared. Before the criminal law amendment (8) was promulgated, people were right? Is theft a consequential offense? There should be no objection, but now because of the description of pickpocketing crime, pickpocketing crime is regarded as a behavioral crime. Pickpocketing is the act of stealing other people's property in public places or public transport? However, this understanding is incorrect. Because, generally speaking, the composition and result of the behavior crime are inseparable, and there is not necessarily a certain result, and there is not only a time-space gap between the behavior and result of pickpocketing, but also the property loss of the victim must be caused by pickpocketing itself. Outside? Change (result), and there is a causal relationship between behavior and result. Therefore, pickpocketing exists in the form of attempted crime, and the standard to distinguish attempted crime lies in whether property or not. Out of control? .

Fourthly, the criminalization of attempted pickpocketing.

The problem lies in how to correctly understand the provisions of Article 12 of Interpretation [2013] No.8, but those who attempt to steal, but take a huge amount of property or precious cultural relics as the object of theft, or have other serious circumstances, shall be investigated for criminal responsibility. In other words, if the attempted theft does not meet the above three conditions, it should not be convicted. Pickpocketing, as a kind of theft, of course, applies the provisions of this article to judge whether it has serious circumstances, which is essentially to consider the social harm of pickpocketing. Considering the unity of Judicial Interpretation No.8 [20 13] and judicial practice, whether there are serious circumstances should be identified from the aspects of subject, subjective understanding, means, object and result, as follows: the perpetrator has a criminal record or has been subjected to administrative punishment within one year; Subjectively, the actor has the intention of stealing a large amount of property; Organizing and controlling the theft of minors, stealing in places where natural disasters, accidents, social security incidents and other emergencies occur, or stealing by destructive means, resulting in losses to public and private property; The object of theft is the property of hospital patients or their relatives and friends, stealing relief materials such as emergency rescue and disaster relief, or stealing the property of vulnerable groups such as the disabled and the elderly; Theft that causes serious injury, death or mental disorder to the victim, or that seriously affects production and public life.

To sum up, the author believes that the eighth amendment to the Criminal Law regards pickpocketing as theft, which has its legislative purpose and practical significance. In the trial practice, it will solve the specific problems encountered in practical application to clarify whether pickpocketing occurs in public places and whether pickpocketing items are personal belongings carried with you.

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