解释论下盗窃罪与抢夺罪界分标准之匡正

对于盗窃罪与抢夺罪的界分标准,理论界一直存在争议,传统观点以秘密性和公然性作为区别盗窃罪和抢夺罪的关键,而有学者提出的平和窃取说则主张以行为是否具有暴力性作为区分之标准.以解释论为研究视角,通过对盗窃和抢夺两词进行文理解释、目的解释、体系解释和比较解释,主张应当坚持传统观点,反对平和盗窃说,将秘密窃取作为盗窃罪的客观构成要件;认为盗窃罪与抢夺罪的主要区别在于盗窃行为具有秘密性,抢夺行为具有公然性,对于行为人误认为未被财物所有人和保管人发现的情况,应当按照盗窃罪处理.

Redressing the Bounded Standards of Larceny and Forcible Seizure from the Perspective of Interpretation Theory

There has been disputes about the bounded standards between the crimes of larceny and of forcible seizure in the theoretical field. Traditional ideas takes secret and openness as the key of distinguishing the larceny and forcible seizure, but some scholars, who put forward peaceful burglary theory, holds that the distin guishing standard is to examine whether the behavior is of violence. From the perspective of interpretation theory, the interpretations for the literal, purpose, system and comparison of both words are carried out, showing that it is necessary to stick to traditional view, and object to the peaceful burglary theory, It is also shown that secret larceny is the objective element of burglary crime, that main difference of burglary and forcible seizure lies in burglary with the secret, forcible seizure with openness. Therefore, when doers mistake their behavior for not being founded by property owner or keepers, the situation should be handled according to the crime of burglary.