1? The premise of transformed robbery
According to Article 269 of the Criminal Law, the actor must commit theft, fraud and robbery first, but not other crimes first, which is a prerequisite for the application of this article. In practice, there are also some viewpoints and practices that regard the previous implementation of other illegal crimes as a prerequisite for the application of Article 269 of the current Criminal Law. For example, some scholars believe that in the process of illegal logging, in order to resist the arrest or protection of illegally logged trees, violence or threat of violence against forest rangers is a prerequisite of Article 269 of the current criminal law. This is not in line with the original intention of legislation. Because this article stipulates that "theft, fraud and robbery" must be committed first, these are crimes against property, and the object and object of the crime are different from the crime of illegal logging. The object of the former crime is general public and private property, and the object is public and private property; The object of the latter crime is the growing trees, and the object is the state's management activities of forest resources and forest ownership. Therefore, the behavior of threatening and beating forest rangers in the process of illegal logging can only be regarded as the plot of the crime of illegal logging or the plot of a heavier punishment. If the ranger is seriously injured or killed because of illegal felling of trees, it constitutes the crime of intentional injury or intentional homicide, and this situation, that is, Article 269 of the current Criminal Law, cannot be convicted of robbery.
The perpetrator must commit theft, fraud and robbery, which is the premise of this crime. Here we should pay attention to the differences between "theft" and "theft", "fraud" and "fraud", "robbery" and "robbery". Judging from the provisions on theft in Article 264, fraud in Article 266 and robbery in Article 267 of the Criminal Law, the fundamental difference lies in whether it meets the minimum conviction standard stipulated by law, that is, "a large amount" (except for "multiple thefts" according to law). If the perpetrator does not commit the above-mentioned acts, the amount is large, but the circumstances are serious, can it be punished as transformed robbery? This is a controversial issue in the judicial field at present.
How to understand the meaning of the precondition of Article 269 of the current criminal law is mainly reflected in whether the property stolen, defrauded or robbed must reach a "large amount", which is the key issue in the precondition. There have been three views in academic circles:
The first view is that the property stolen, defrauded or robbed must reach a "large amount" before Article 269 of the Criminal Law can be applied. The reason is that Article 269 of the Criminal Law stipulates "committing theft, fraud and robbery", not committing these illegal acts. According to Articles 264, 266 and 267 of the Criminal Law, theft, fraud and robbery can only constitute crimes if they reach a large amount. Therefore, the prerequisite for the application of Article 269 of the Criminal Law must also adhere to this point. If the previous acts of theft, fraud and robbery are general illegal acts, Article 269 of the Criminal Law cannot be applied. At this time, if the use of violence on the spot constitutes a crime, it should be dealt with according to the relevant charges (such as injury and murder). ①
The second view is that the crime of theft, fraud and robbery in Article 269 of the current Criminal Law does not limit the amount of property to "a large amount". The amount of property is not large, but the violence is serious or even causes serious consequences,
Article 269 of the Criminal Law is applicable; However, article 269 of the Criminal Law does not include petty theft. If you commit petty theft first, then use violence to conceal, resist arrest or destroy evidence, you can't define the crime of robbery according to Article 269 of the Criminal Law, but you should define the crime of injury or homicide according to its actual situation. ①
The third view holds that, starting from the criminal nature and harm degree of Article 269 of the current Criminal Law, starting from the legislative intention of this article and its coordination with robbery, and considering the need for coordinated and unified law enforcement and clear and consistent standards, when applying Article 269 of the Criminal Law to convict, the amount of theft, fraud and robbery should not be limited in advance, neither requiring "a large amount" nor excluding "a small amount". As long as he commits theft, fraud and robbery first (whether accomplished or attempted), commits violence or threatens violence on the spot to conceal, resist arrest or destroy evidence, and the case is not "obviously minor and harmless", he should be convicted in accordance with Article 269 of the Criminal Law, and should not be classified as other crimes. ②
The author believes that the following "opinions" are most worthy of recognition. No matter from the legislative intent or judicial interpretation, it is appropriate for the opinion to do so.
In June 2005, the Supreme People's Court's Opinions on Several Issues Concerning the Application of Laws in the Trial of Criminal Cases of Robbery and Snatching pointed out: if the perpetrator commits theft, fraud and robbery in a small amount, and uses violence or threatens violence to hide stolen goods on the spot, resists arrest or destroys criminal evidence, if the circumstances are minor and the harm is not great, he is generally not punished as a crime; However, in any of the following circumstances, you can be convicted and punished for robbery in accordance with the provisions of Article 269 of the Criminal Law:
(1) Theft, fraud and robbery are close to the standard of "large amount";
(2) After theft, fraud or robbery at home or on public transport, the above-mentioned acts are carried out outdoors or outside the car;
(3) Using violence to cause minor injuries;
(4) Use or threat of use of weapons;
(five) other serious circumstances.
(1) Sun Guoli and Zheng Changji, Law Review, No.2, 1983.
② Chen Xingliang, etc. Course of Case Criminal Law (Volume II), China University of Political Science and Law Press, 1994, p. 278.
(3) Wang, Theory and Practice of Criminal Law in New China, Hebei People's Publishing House, 1988, pp. 575-574.
2. Subjective conditions
Article 269 of the Criminal Law stipulates that the subjective conditions for the establishment of this crime are concealing stolen goods, resisting arrest or destroying criminal evidence. This is the subjective difference between transformed robbery and typical (standard) robbery. Typical robbery, the perpetrator's violence, coercion and other violations of others' personal rights are aimed at forcibly and illegally occupying public and private property, that is, the violation of personal rights is a means of obtaining money. Transformed robbery, in which the perpetrator commits violence or threatens violence, aims at concealing, resisting arrest and destroying evidence. "Hiding stolen goods" means that the perpetrator protects the stolen goods that have been illegally stolen, defrauded or obtained, and prevents the victim or other captors from getting them back, instead of hiding the stolen goods in his own home or others' home after the crime is successful.
3. Objective conditions
According to the law, the perpetrator must first commit theft, fraud and robbery, and then "use violence or threaten violence on the spot", which is the objective condition for the application of Article 269 of the Criminal Law, and also the key to decide that theft, fraud and robbery should develop into transformed robbery first. This objective condition can be further divided into behavioral conditions and spatio-temporal conditions. The behavior condition is violence or threat of violence, and its meaning should be the same as violence and coercion in the typical robbery in Article 263 of the Criminal Law. Its time and space condition is that this kind of violence or threat of violence is carried out "on the spot". The so-called "violence" means that criminals beat and hurt the person who arrested him, which is enough to endanger his health and life safety. This kind of violence is deliberately carried out by criminals in order to hide stolen goods, resist arrest or destroy criminal evidence. "Threatening with violence" means that criminals threaten to commit violence immediately and carry out mental coercion. Its characteristics are: first, criminals are handed over to public security organs and any citizens on the spot; Secondly, they threatened to commit violence immediately; Thirdly, in order to hide stolen goods, resist arrest or destroy criminal evidence on the spot, if you resist, you will immediately resort to violence.
4. Time conditions
The time condition for the establishment of transformed robbery is to commit violence or threaten violence "on the spot" in this crime. "On the spot" refers to the scene where criminals commit crimes, or the place where criminals are found and immediately pursued as soon as they leave the scene, which is also the "extension of the scene" in criminal law theory. Violence or threat of violence in transformed robbery is continuous in time and space and related to previous theft, fraud and robbery, that is, it is continuous and uninterrupted in time, which can be the same place in space or an extension of the previous place. We can't mechanically understand the time and space conditions of establishing this crime as the scene, which will make the time and space scope too narrow, which is not in line with the actual situation of transformed robbery and the requirements of crime constitution, and is not conducive to cracking down on this kind of crime. If the perpetrator uses violence or threats to conceal, pursue or destroy evidence at the scene of theft or immediately after leaving, it should be recognized as transformed robbery. If the pursuit was interrupted or ended at that time, or the perpetrator was not found and pursued at the time of committing the crime, but was found and pursued at another time and place, then the perpetrator's violence or threat of violence to cover up, resist arrest and destroy evidence cannot be regarded as transformed robbery, but should be convicted and punished according to relevant laws respectively.
To sum up, it can be seen that the establishment of transformed robbery must meet the above four conditions at the same time, which are complementary, closely related and simultaneously possessed.
(3) The standard of accomplished and attempted transformed robbery.
With regard to the standards of accomplished and attempted transformed robbery, one view holds that transformed robbery should be punished according to the general robbery stipulated in Article 263 of the Criminal Law, and the standards of accomplished and attempted robbery should also be the same as the general robbery. Another view is that as long as the perpetrator commits violence or threatens violence, the transformed robbery is accomplished, in other words, the transformed robbery is not attempted.
I think the first view is more reasonable. Transformed robbery and general robbery are crimes with the same criminal nature, and general robbery takes obtaining property as the standard of attempted accomplishment. There is no reason to adopt different standards because transformed robbery has the same criminal nature and the same danger and harmfulness.
Specifically, after stealing, swindling and robbing property, when committing acts of violence, coercion to hide stolen goods, resisting arrest or destroying criminal evidence, accomplished and attempted are distinguished by whether the actor finally obtains property. If the actor finally obtains property, it is the accomplishment of transformed robbery, and vice versa. Because the perpetrator carries out violence and coercion for the purpose of refusing to return the property, whether the perpetrator finally obtains the property can reflect whether the crime is successful or not. However, if the perpetrator carries out violence or coercion for the purpose of evading arrest or destroying criminal evidence, how to identify it? After the actor obtained the property, the violence and coercion for the above two specific purposes also objectively played a role in protecting and controlling the stolen goods. Therefore, even if the perpetrator carries out violence or coercion for the purpose of evading arrest or destroying criminal evidence, the standard of attempt is whether the perpetrator finally obtains stolen goods.
The distinction between accomplished and attempted transformed robbery is based on whether the perpetrator finally obtains property or not. Therefore, the attempted establishment of transformed robbery is because theft, fraud and robbery failed to obtain stolen goods, and violence and coercion were carried out for two specific purposes: resisting arrest and destroying criminal evidence. It grasps the essential feature that this kind of crime belongs to the crime of corruption, and focuses on whether to rob property, not whether to implement violence or coercion, rather than whether to implement violence or coercion to determine the difference between accomplished and attempted. If this situation is regarded as accomplished, the consequences will be: in ordinary robbery cases, the use of violent means to obtain property, or the property was taken back by the owner on the spot, can only be an attempted robbery. The harmfulness and danger of robbery afterwards will not exceed that of ordinary robbery. It is obviously unfair to regard ordinary robbery as the punishment of attempted robbery and the accomplishment of transformed robbery.