I. The case
Defendant: Lin, male, 17 years old.
After graduating from junior high school, Lin often went to live with her aunt in a flour mill and helped her make breakfast. One day, Lin asked his mother to work in other places, but her mother refused. In order to raise the travelling expenses, Lin had the evil idea of stealing. In July 2003, Lin learned from his cousin Ding that there was only one woman living in Room 40 1 of Building 4 of a flour mill dormitory, and she could climb the building. On the afternoon of February 23rd, 65438, when Lin visited Ding's house, Lin asked when the woman living in Room 40 1 would go to bed, and Ding told Lin to go to bed from 1 1 to 12. At about 1 1 that night, Lin climbed into the dormitory area of the flour mill with a fruit knife and a wool hat and was found trying to steal along the bedroom. When Lin saw it, he pushed it down on the bed in the bedroom and threatened to stab you with a fruit knife. Chen Mou was afraid and refused, and Lin also fled the scene the same way. After the incident, Lin was arrested and brought to justice by the public security organs. On March 5, 2004, the procuratorate filed a public prosecution against Lin for alleged robbery. The court heard the case publicly, and the defendant Lin's defense lawyer pleaded not guilty.
Second, differences.
In the trial, the court has two different opinions on the nature of the case:
The first opinion is that the defendant Lin is not guilty.
Reason: Defendant Lin's behavior belongs to attempted theft rather than accomplished, and there is no problem of transformation. Defendant Lin pointed a knife at the victim's back and threatened "Don't scream, or I will stab you to death", but judging from what he used, he used a small fruit knife bought by his cousin from the street. The defendant originally planned to pry open the window. After the victim found someone entering the room for questioning, he quickly hid on the balcony, pushed the victim into the room and quickly fled from the original road. Judging from this series of behaviors, the defendant's behavior is only to escape from the scene. Here, according to the Supreme People's Court's June 28 199 1 Telephone Reply on the Question of whether attempted theft can be punished as robbery by using violence on the spot, attempted theft does not constitute theft, but it is not considered a crime by using violence or threatening violence, if the circumstances are not serious and the harm is not great. Therefore, the defendant Lin did not constitute robbery (attempted) and thought that the defendant Lin was not guilty.
The second opinion is that the defendant Lin committed robbery (attempted).
Reason: After the defendant Lin was found in the process of theft, he used violence and threatened to resist arrest with a knife, which met the constitutive requirements of robbery. Article 263 of China's Criminal Law stipulates that "whoever robs public or private property by violence, coercion or other means shall be punished ...". Article 269 of China's Criminal Law "Whoever commits the crime of theft, fraud or robbery, uses violence on the spot or threatens violence to conceal evil practices, resists arrest or destroys criminal evidence, shall be convicted and punished in accordance with the provisions of Article 263 of this Law." . Article 263 of China's criminal law is about robbery. Robbery refers to the act of forcibly robbing public and private property by violence, coercion or other means on the spot for the purpose of illegal possession. The obvious special evidence that constitutes robbery is "robbing property by violence, coercion or other means." . Article 269 of China's criminal law is about committing theft, fraud and robbery, and concealing or refusing to report, resisting arrest or destroying criminal evidence by violence or threat of violence, which is classified as robbery. According to the provisions of Article 269 of China's Criminal Law, after committing theft, fraud and robbery, using violence or threatening violence must meet the following three conditions before it can be transformed into robbery: first, the prerequisite for transforming into robbery is that the perpetrator has committed theft and other crimes, and the perpetrator has not only committed theft and other acts, but also constituted a crime; Second, there must be a purpose of resisting arrest; Third, there must be acts of violence or threats of violence at the scene. In this case, Lin not only committed theft, but also had the purpose of resisting arrest and threatened violence. In addition, Article 23 of the Criminal Law of China stipulates that "if a crime has been committed and an attempt is made for reasons other than the will of the criminal, it is an attempted crime." The provisions of the. "In this case, the defendant has set out to commit a crime, because of the shouting, that is, because of reasons other than Lin's consciousness, he failed. Therefore, Lin's whole criminal behavior conforms to the constitutive requirements of Articles 269, 263 and 23 of China's Criminal Law. To this end, the defendant Lin committed robbery (attempted).
Third, evaluation
The author agrees with the above second opinion, that is, the criminal behavior of the defendant Lin conforms to the constitutive requirements of robbery (attempted), and Lin's criminal behavior belongs to transformed robbery (attempted), so Lin should be found guilty of robbery (attempted).
(1) Judicial Determination of Innocence and Robbery (Attempted)
1. Legal provisions on crimes and those that are not considered crimes: Article 13 of China's Criminal Law stipulates that "all acts endangering national sovereignty, territorial integrity and security, acts of splitting the country, acts of subverting the people's democratic dictatorship and overthrowing the socialist system, acts of disrupting social and economic order, acts of infringing state-owned property or property collectively owned by working people, acts of infringing citizens' private property, and acts of infringing citizens' personal rights, democratic rights and other rights." .
2. Provisions on attempted crime in Criminal Law: Article 23 of China's Criminal Law stipulates that "a crime has been committed, but it fails due to reasons other than the will of the criminals, which is an attempted crime." The provisions of the.
3. The Robbery Law stipulates: (1) Article 263 of China's Criminal Law stipulates that "whoever robs public or private property by violence, coercion or other means shall be punished ..."; (2) Article 269 of China's Criminal Law stipulates that "whoever commits theft, fraud or robbery, uses violence or threatens violence on the spot in order to hide evil and shelter evil people, resist arrest or destroy criminal evidence, shall be convicted and punished in accordance with the provisions of Article 263 of this Law." .
4. Provisions of the Theft Law: (1) Article 264 of China's Criminal Law stipulates that "whoever steals public or private property in a large amount or for many times shall be punished ..."; (2) the Supreme People's Court, the Supreme People's Procuratorate 1988 "Reply on How to Apply Article 153 of the Criminal Law (Article 269 of the Revised Criminal Law)" pointed out that "if the defendant commits crimes such as theft and uses violence on the spot or threatens to resist arrest, he shall be punished as robbery according to the provisions of Article 153 of the Criminal Law (Article 269 of the Revised Criminal Law). In judicial practice, some defendants commit theft and other acts, although the amount is not large, but in order to resist arrest and other acts, they use violence or threaten violence on the spot. If the circumstances are serious, it shall be punished as robbery, and if there is little threat or harm, it shall not be considered as a crime. (3) On June199265438+February 1 1, the Supreme People's Court and the Supreme People's Procuratorate stipulated in the Interpretation of Several Issues Concerning the Specific Application of Laws in Handling Theft Cases: "Attempted theft can only be convicted and punished according to law if the circumstances are serious, such as explicitly targeting huge amounts of cash, national precious cultural relics or valuables. " ; (4) 1998, 17 On March 7, the Supreme People's Court stipulated that "according to the provisions of Article 264 of the Criminal Law, stealing a large amount of public or private property secretly or stealing public or private property repeatedly for the purpose of illegal possession constitutes theft. (a) the amount of theft refers to the amount of public and private property stolen by the actor. (2) Attempted theft, if the circumstances are serious, with a huge amount of property or national precious cultural relics as the object of theft, shall be convicted and punished. " ; (5) On June 28th 199 1 the Supreme People's Court, the telephone reply on whether attempted theft can be punished by using violence on the spot according to robbery stipulates that attempted theft does not constitute theft, but it is not considered a crime if violence is used or threatened, and the circumstances are not serious and the harm is not great.
(2) In this case, it is inappropriate to find the defendant guilty of robbery (attempted robbery) and innocent.
According to the laws of our country, combined with the actual case, the author thinks:
Robbery refers to the act of using violence, coercion or other methods on the spot to rob public and private property immediately for the purpose of illegal possession. The main characteristics of robbery are: 1. The infringed object is a complex object, that is, the right infringes on the ownership of public and private property, and also infringes on the personal rights of the victim; 2. Objectively, the actor must use violence, coercion or other personal coercion on the spot against the owners, custodians and guardians of public and private property, and immediately take away the property or force the victim to hand it over immediately. This criminal means of forcibly taking possession of the victim's body on the spot is the essential feature of robbery and the most remarkable feature that distinguishes it from theft. The so-called coercion mentioned above refers to the criminal's mental coercion with the threat of immediate violence, which makes the victim afraid to resist, forced to hand over property on the spot, or let him rob immediately. This kind of coercion is generally directed at the victim, and some may also be directed at the victim's relatives, friends or other relevant personnel present. Threats are usually made in clear language, which makes people afraid to resist. Whether a criminal act constitutes robbery should be judged by violence, coercion or other methods. Some criminals prepare for theft and robbery, carry murder weapons, sneak into the crime scene at night, and find that the people at the crime scene are asleep and steal property easily, which should be classified as theft; If in the process of theft, the perpetrator is awakened to resist or shout, and immediately takes out the murder weapon and uses violence to snatch items; Constitute robbery; And if the goods are not robbed; Constitute robbery (attempted). 3. Subjectively, this crime can only be constituted by direct intention, and the intentional content must be aimed at illegal possession of public or private property; 4. The subject of crime is the general subject. In general robbery, the standard of accomplished and attempted crime should be whether the property was robbed. That is, I robbed the property and didn't hurt anyone, so I'm done. If you don't grab property and cause no harm, or grab property and cause minor injuries, it is an attempt. The difference between robbery and theft is mainly the difference of criminal means. Theft is stealing public and private property in secret. It can use the victim to steal property when he is asleep, drunk and seriously ill, which is different from using drugs to anesthetize the victim and make him sleep, thus robbing property. Secondly, according to the provisions of China's criminal law, it constitutes robbery, and there is no provision for the amount of property robbed; And larceny stipulates that "a large amount" is a necessary condition.
Transformed robbery. Taken together, the provisions of Article 269 of China's Criminal Law and the situations listed in this article have transformed the nature of crime into robbery. This article: First, the premise of theft. , generally refers to one of these criminal acts. Some defendants commit theft and other acts, although the amount is not large, but they use violence or threaten violence on the spot, and if the circumstances are serious, they can be punished according to the crime of robbery; Second, the purpose is to resist arrest. Resisting arrest refers to resisting the arrest and detention of him by the public security organ or any citizen, especially the owner; Thirdly, the condition of threatening violence means that the criminal commits violent acts against the person who arrested him, or threatens to commit such acts, and the circumstances are serious, which is the focus of this article and the fundamental point that distinguishes other crimes. If violence or threat of violence is not serious and harmful, it is not considered a crime. If there is no intention of harm, just to get rid of arrest and escape as soon as possible, pushing and bumping cannot be considered as using violence; Fourth, time must be at the scene, which refers to the scene where criminals commit crimes; Fifth, the nature of crime. Due to the occurrence of the above situation, violence was mainly used, which turned the nature into robbery, so it was convicted and punished in accordance with the provisions of Article 263 of the Criminal Law. The difference between robbery and theft is mainly the difference of criminal means. Theft is the secret stealing of public and private property, robbery is the face-to-face threat of violence to rob money on the spot, and violence is immediately applied when resistance is encountered.
During the whole criminal act of the defendant Lin in this case, that is, on the evening of February 23, 2003 1 1, Lin fled to the home of Room 40 1 in Building 4 of a flour mill dormitory, climbed up along the outer wall and pried open the window with a fruit knife to enter the room. When he tried to steal something in the bedroom, Chen Mou found him and asked loudly, "Who? . After turning on the light, I found the defendant Lin. When Lin saw it, he pushed it down on the bed in the bedroom, grabbed his neck with a fruit knife and threatened, "Don't scream, or I'll stab you to death." Dare not say no, so Lin fled the scene by the original road. After the defendant Lin was found in the process of theft, he used violence and threatened to resist arrest with a knife, which constituted the three basic characteristics of the above crimes. Attempted crime, robbery (attempted) and the nature of the crime stipulated in Article 269 of the Criminal Law were transformed into robbery. At the same time, it meets the requirements of1March 6, 988, Reply of the Supreme People's Court and the Supreme People's Procuratorate Authorities on How to Apply Article 153 of the Criminal Law (Article 269 of the New Criminal Law). Especially after Lin was discovered by the shopkeeper, he threatened the shopkeeper with a knife, that is, Lin strangled his neck with a fruit knife, and threatened with words such as "If you don't scream, I will stab you to death". If the circumstances are serious and harmful, Lin used violence to turn the nature of theft (attempted) into robbery (attempted). This is the key point of this case. Therefore, the defendant Lin's criminal behavior constitutes robbery (attempted).
In this case, when the defendant Lin committed theft, if he didn't threaten the owner with a knife, but fled immediately after the owner shouted, that is, he didn't steal anything to escape, and Lin constituted theft (attempted). According to the attempted theft, the circumstances are obviously minor, and the social harm has not yet reached the level of punishment. In this case, Lin can be considered innocent. This case is not the case, but Lin was found in the process of theft and threatened by violence, which changed his nature and met the constitutive requirements of robbery (attempted). Therefore, the defendant Lin in this case cannot be considered innocent.
To sum up, the defendant Lin should be found guilty of robbery (attempted) in this case, not innocent.