抢劫罪既遂与未遂区分标准新探

如何区分抢劫罪的既遂与未遂,历来存在争议,尤其是1997年刑法典实施后,针对八种加重抢劫情节是否存在未遂问题,刑法理论更是聚讼不一。抢劫罪既遂与未遂的争议应立足于法益保护,立法者制定任何一条罪刑规范都有其欲意要保护的法益,只有当这一保护的法益受到侵害时,才成立犯罪既遂。据此,普通抢劫罪和加重抢劫罪除抢劫数额巨大、多次抢劫外,抢劫罪既遂与未遂的区分应以被害人是否失去对财物的控制为判断标准。

New Understanding on the Distinguish Standard between Accomplished Offence and Attempted Offence in the Crime of Robbery

There always have been debates on how to distinguish an accomplished offence and an attempted offence in the crime of robbery. Especially after the implementation of the 1997 Criminal Law, the controversy on whether there exists attempted offence in the eight aggravated offences by circumstances in the crime of robbery become more and more outstanding. In my opinion, the controversy shall be based on the protection of legal interest, for there must be some legal interest to be protected by the criminal regulation which will be hold in mind by the legislators when enacting the said regulation. Only when this legal interest has been trespassed, will there be an accomplished offence. Therefore, both in the ordinary crime of robbery and the aggravated one, except those of huge amount and repeated robbery, the distinguishable standard between an accomplished offence and an attempted offence shall be whether the victim has lost control of his property.