盗窃罪中的被害人同意

盗窃罪的客观构成要件是违反占有人意愿而转移财物的占有;相反,得到占有人同意而取走财物,就可以排除盗窃罪的客观构成要件。将被害人同意的一般原理与盗窃罪构成要件的具体特征相结合,能够强化刑法总论与各论之间的整合与协调,促进刑法教义学的纵深发展。运用"预设的同意"理论,可以有效回应ATM机等自助型机器类案件中的疑难问题:使用"伪币"从机器处取得财物的,构成盗窃罪;使用真币从机器处取得财物后又抽出真币的,构成针对真币的盗窃罪;非法使用他人的信用卡在ATM机上取款的,不构成盗窃罪;使用信用卡利用ATM机故障恶意取款的,构成盗窃罪。在盗窃陷阱的场合,应根据是否存在同意而区分既遂和未遂。按照"客观权限+审核义务"的标准来区分盗窃罪间接正犯与三角诈骗,体现了对被害人意愿的尊重。

The Consent of the Victim in theTheft Crime

The consent of the victim is a very important subject in the field of the general theory of the criminal law.As a justification beyond the legislation,the consent’s function of justification has become the common view in the academic of the criminal law.The consent of the victim in the property crimes may affect both the subjective and objective constitutive requirements.According to the dogmatic theory of the criminal law,the objective constitutive requirements of the theft are to transfer the control of the property in violation of the will of the controller.Instead,taking away the property under the consent of the controller could be excluded from its objective constitutive requirements.The integration of the general principle of the consent of the victim and the specific characteristics of the objective constitutive requirements of the theft could achieve some new and independent dogmatic fruits which coordinate the general theory and the specific theory of the criminal law. Firstly,by applying the theory of the "preset consent",we can resolve a series of problems effectively occurred in ATM and other self-service machine cases.That is,obtaining property by using counterfeit currency from machines constitutes the theft crime,and withdrawing the real currency after obtaining property by use of real currency from machines constitutes the theft crime against the real currency.Moreover,illegally using other people’s credit card to get money from the ATM does not constitute the theft crime,and using a credit card to draw money from the ATM by utilizing the ATM’s malfunction constitutes the theft crime.In addition,according to whether there is consent about transferring the control of the property,the accomplished theft and the attempted theft can be distinguished on the theft trap occasions.Finally,to distinguish the indirect principle offender of the theft and the triangle defraud according to the standard of "objective authority + examination obligations" reflects the respect for the will of the victims.