"transformed robbery" should meet the necessary conditions of general robbery
Article 269 of China's Criminal Law stipulates transformed robbery, that is, those who commit theft, fraud or robbery, use violence or threaten violence to hide stolen goods on the spot, resist arrest or destroy criminal evidence, shall be convicted and punished for robbery. Then, after committing related crimes, does the perpetrator use violence or threaten violence on the spot, and is it necessary to suppress the victim from resisting, not resisting and not knowing how to resist?
In this regard, there are different views in theory: one view is that in the transformed robbery, the actor's act of using violence or threatening violence on the spot cannot be restricted by the conditions in the identification of general robbery, and it is not necessary to suppress the victim so that he can't resist, dare not resist and don't know how to resist. This is because the perpetrator committed two groups of acts before and after, namely, theft, fraud, robbery, and violence or threat of violence afterwards. In the case of the combination of these two groups of behaviors, as long as the perpetrator used violence or threat of violence on the spot, even if the victim was not suppressed by the violence or threat of violence on the spot, he could not and did not dare to resist. Judging from the punishability, he also meets the conditions of robbery. Another point of view is that in the transformed robbery, the perpetrator's act of using violence or threatening violence on the spot should meet the identification conditions of ordinary robbery, that is, violence or threatening violence can suppress the victim so that he can't resist or dare not resist.
The author believes that the latter view is more reasonable. Although transformed robbery is a combination of pre-crime behaviors such as theft, fraud and robbery with post-crime violence or threat of violence, this combination itself is still recognized as robbery, and no new charges are set according to the theory of joint crime. Then logically, nature should meet the substantive conditions of robbery.
The judgment elements of escape and resisting arrest in "transformed robbery"
According to the Opinions, "escape" is generally not recognized as "resisting arrest" in transformed robbery. Then, logically speaking, how to accurately identify "escaping arrest by getting rid of it" has become the key to the judgment of transformed robbery. In my opinion, whether the perpetrator escaped from arrest by violent means is "escaping from arrest" as stipulated in the Opinions or "resisting arrest" as stipulated in Article 269 of the Criminal Law should be analyzed mainly from two aspects:
First, whether the perpetrator committed "aggressive" violence. Generally speaking, violence is mainly divided into "offensive" violence and "defensive" violence. In practice, after many perpetrators commit crimes of theft, fraud and robbery, the reason for their violent behavior is not "active attack" but "passive defense". For example, the perpetrator was caught by the head of the household in the act of burglary. In order to avoid arrest, in the process of fighting with the victim, there may be "coercive behaviors" such as cutting hands, swinging arms and kicking. In this case, even if the behavior of waving arms and kicking legs objectively conforms to the external characteristics of "violence", it does not belong to the violent behavior in the crime of transformed robbery, but "escaping arrest by way of getting rid of it" as stipulated in the Opinions. This is because the behavior of the actor, such as cutting hands and kicking legs, is almost an instinctive stress reaction in essence, and the actor did not suppress the subjective intention of the victim to resist or dare not resist. If the perpetrator takes the initiative to escape arrest after committing a crime, such as stabbing or threatening the victim with a dagger that he carries with him, there is an intention to suppress the victim's resistance. At this time, it should be recognized as "using violence on the spot or threatening violence to resist arrest" as stipulated in Article 269 of the Criminal Law, rather than "escaping arrest by getting rid of it" as stipulated in the Opinions.
Secondly, whether the "aggressive" violence committed by the perpetrator can suppress the victim enough so that he can't resist or dare not resist. As mentioned above, the judgment of transformed robbery should also meet the constitutive requirements of general robbery. Theoretically, the victim can't resist, dare not resist, etc. This is the essential element that distinguishes robbery from other property crimes. Similarly, in the identification of transformed robbery, it is also an essential element that the victim can't resist or dare not resist, otherwise it doesn't meet the constitutive elements of robbery. In practice, many perpetrators use "offensive" violent means such as punching, kicking and biting to escape arrest, but whether this belongs to "using violence on the spot or threatening violence" as stipulated in Article 269 of the Criminal Law should be judged in combination with the substantive identification conditions of robbery. The author believes that "aggressive" violence such as punching, kicking and biting by the perpetrator is not "resisting arrest" as stipulated in Article 269 of the Criminal Law, but "evading arrest" as stipulated in the Opinions, if it is only to create conditions and space for escaping from the scene and does not cause the victim to be unable to resist or dare to resist. Of course, whether the perpetrator can take "aggressive" violence such as punching, kicking and biting can achieve the result of suppressing the victim so that he can't resist or dare not resist depends on the specific case. If the perpetrator's violent acts such as punching, kicking and biting are enough to cause the victim to be unable to resist or dare not to resist, it can be completely recognized as transformed robbery. For example, the actor is a very high-level amateur boxer. When escaping arrest, the victim fell to the ground in a key part of boxing, which is obviously "using violence on the spot or threatening violence".
In short, whether the "aggressive" violence committed by the perpetrator after committing a crime is "resisting arrest" as stipulated in Article 269 of the Criminal Law or "escaping arrest by way of getting rid of it" as stipulated in the Opinions, it is necessary to analyze whether this behavior is enough to suppress the victim so that he can't resist or dare not resist.
It is worth noting that the Opinions stipulates the condition that "the degree of violence is small, without causing minor injuries" when limiting the crime of transformed robbery. Is it necessary to consider that "the above consequences did not cause minor injuries"? The author believes that this is worthy of reflection in theory. For example, after the burglary, the perpetrator was found, and suddenly took out the murder weapon he carried with him when escaping from the victim's arrest and took the initiative to attack the victim. Although the victim was not "slightly injured" in the end, if the victim was completely suppressed and could not resist or dared not resist, can it be regarded as "transformed robbery"? In my opinion, the answer is yes. This is because the perpetrator's active attack with a murder weapon (including actual injury or threat) is itself a "violence or threat of violence" in general robbery. Although there is no objective result of causing minor injuries to the victim, it should also be recognized as transformed robbery. Of course, how to determine that the victim is completely suppressed, unable to resist or afraid to resist, should be comprehensively judged on the basis of general social cognition, from case to case and from person to person.