盗窃油气案件司法解释第3条第2款的理解适用

"两高"新近颁布了盗窃油气案件司法解释,其中第3条第2款规定:"盗窃油气,数额巨大但尚未运离现场的,以盗窃未遂定罪处罚."通过分析可以看出,该规定既未提供盗窃油气案件既遂未遂的标准,也并非提示性规定.在盗窃油气数额较大,但尚未运离现场的情形下,虽然形式上符合盗窃未遂,但结合数额较大以及尚未运离现场考虑,可认定为情节显著轻微危害不大,符合刑法但书规定从而不认为是犯罪.而在数额巨大但尚未运离现场的情形下,则不符合但书规定,从而构成盗窃未遂.

Comprehension and Application on Paragraph2, Article3 of the Judicial Interpretation for the Criminal Case Concerning Stealing Petroleum and Petroleum Associated Gas

Supreme People's Court and Supreme People's Procuratorate recently issued a judicial interpretation for the criminal case concerning stealing petroleum and petroleum associated gas.Paragraph2,Article3 of this interpretation states,"Whoever steals a huge amount of petroleum and petroleum associated gas that hasn't transported from the scene shall be convicted and punished as attempted theft." The expression doesn't provide a standard to distinguish between attempts and accomplish in theft.It's not an indicative provision either.Stealing a relatively large amount of petroleum and petroleum associated gas that isn't transported from the scene constitutes attempted theft in form,however,it shall be convicted that the circumstance are obviously minor and the harm done is not serious by considering the relatively large amount combining with the property isn't transported from the scene.Therefore,it's not a crime according to Article13 of the Penal Code.Stealing a huge amount of petroleum and petroleum associated gas that isn't transported from the scene constitutes attempted theft because it does no longer meet Article13 of the Penal Code.