论刑法中的扒窃——对《刑法修正案（八）》的分析与解读

扒窃是指行为人以非法占有为目的,在公共场所秘密窃取他人随身携带财物的行为。《刑法修正案（八）》对盗窃罪的修改,即＂……或者多次盗窃、入户盗窃、携带凶器盗窃、扒窃的……＂因顿号的使用而容易产生歧义。对此应理解为＂扒窃＂行为是与多次盗窃、入户盗窃、携带凶器盗窃相并列的一种单独构成盗窃罪的条件,而不是仅将＂携带凶器扒窃＂的行为入罪化。扒窃行为区别于一般盗窃行为的特征：一是发生在公共场所;二是窃取的是＂随身携带＂的财物。这两个特征使扒窃行为的社会危害性程度超出了普通盗窃行为,而有了单独入罪的必要性与合理性。     

Establishing Connections: Gender,Motor Vehicle Theft,and Disposal Networks

Motor vehicle theft is an offense typically dominated by male offenders. As with all other major forms of criminal activity that are male dominated, women do participate in the theft of vehicles; yet, few studies have endeavored to examine their involvement in auto theft and even fewer have directly compared women's experiences alongside that of men's. This paper examines the gendered nature of motor vehicle theft through direct comparison of in‐depth interviews with 35 men and women actively involved in auto theft in St. Louis, Missouri. By tracing similarities and differences between men's and women's initiation into auto theft, enactment methods, and access to networks for vehicle and parts' disposal, we provide a contextual analysis of offender's perceptions and behavior. The findings indicate that while initiation into auto theft and property disposal networks are both governed by male gatekeepers, women experience greater barriers in gaining access to disposal networks than they do entry into auto theft offending which, in turn, leads to some key similarities in techniques between men and women.     

On the application of CRAVED to livestock theft in Malawi

Livestock theft is common in many parts of sub-Saharan Africa. Experience of theft can deplete household assets and food resources. This article reports the findings of an exploratory study to investigate whether livestock theft patterns in Malawi reflect variations in the extent to which different animals are “CRAVED” (Concealable, Removable, Available, Valuable, Enjoyable, and Disposable), Clarke's mnemonic to explain preferences for items to steal. Measures of the elements of CRAVED were correlated with self-reported levels of theft for seven species of livestock using data from a cross-sectional, nationally representative survey of 11,280 households. Higher availability and disposability of livestock were significantly associated with higher levels of theft. Livestock displaying more CRAVED attributes were also stolen in greater numbers. The findings are cautiously interpreted as suggesting that livestock theft in Malawi is largely opportunistic. Implications from and for the application of CRAVED to livestock theft in Malawi are discussed.     

盗窃犯罪及其刑法适用研究

盗窃犯罪数量多、危害大。当前的盗窃犯罪表现出新的特点,有其复杂的原因,应当加强防范。适用刑法,首先应当认真分析、正确认定;其次应当量刑轻缓、罪刑相当。     

秦汉盗罪及其立法沿革

将张家山汉简《盗律》与相关文献记载相结合 ,通过汉《盗律》与唐律的比较 ,可以看到秦汉时期各种类型的盗罪的特点及相关立法 ,《盗律》的沿革轨迹也是清晰可见。     

EDITORS LETTER

Identity theft has become one of the most ubiquitous crimes in the USA with estimates of the number of households being victimized annually ranging between 5% and 25%, resulting in direct losses totaling hundreds of billions of dollars over the past few years. Government efforts to combat identity theft have included legislation criminalizing and increasing penalties as well as regulatory efforts designed to protect individual identifying information held by financial and other business organizations. At the same time, individuals are taking their own preventive actions and purchasing private protection such as credit monitoring and identity theft insurance services. We use data from a large sample of residents from four states (Illinois, Louisiana, Pennsylvania, and Washington) in order to assess the public's willingness to pay (WTP) for a government program designed to reduce identify theft under two separate conditions, one promising a 25% reduction in identity theft and the other promising a 75% reduction in identity theft. Results indicate that: (1) between 40% and 66% of the public is willing to pay an additional tax for identity theft prevention, more so when the promise of a reduction is highest (75% compared to 25%) with an average WTP of $87, and (2) WTP is highest among individuals who carry many credit cards, who subscribe to an identity theft protection service, and who take active steps in preventing fraud by shredding bills and paying with cash, but is lowest among individuals who believe that taxes are too high. Converted into a “per crime” cost and combined with the portion of identity theft costs that are borne directly by business, we estimate the average cost per identity theft to range from approximately $2,800 to $5,100.     

Exploring the psychological and somatic impact of identity theft

Identity theft is a new and growing form of white-collar crime. This exploratory study examined the psychological and somatic impact of identity theft and coping methods utilized by victims. Thirty-seven victims of identity theft participated in regional victim focus groups. Participants completed a victim impact questionnaire designed by the authors and the Brief Symptom Inventory-18 (BSI-18). The majority of participants expressed an increase in maladaptive psychological and somatic symptoms post victimization. Results on the BSI indicated that identity theft victims with unresolved cases, in contrast to those with resolved cases, were more likely to have clinically elevated scores when compared with a normative sample. Relatively similar coping mechanisms were utilized across victims. The results from this study suggest that victims of identity theft do have increased psychological and physical distress, and for those whose cases remain unresolved, distress is maintained over time.     

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。     

财产性利益盗窃的客观构造

利益盗窃与有体物盗窃共享“财产静态控制关系”的保护法益,其解释论不能突破“盗窃”的语义边界,这是形塑其客观构造的前提。套用占有理论的解释论忽视了利益变动与有体物转移的区别,具有片面性。立足利益盗窃与有体物盗窃的共性,结合财产性利益的特质,利益盗窃的客观构造应为“侵入权利人控制领域-打破权利人控制-取得财产性利益”。这一构造既契合盗窃罪财产静态控制关系的保护法益,也未突破“盗窃”的语义边界。由于利益变动的抽象性,须通过行为要素互补等精细化解释,确保利益盗窃客观构造的明确性。“侵入权利人控制领域”对利益盗窃的成立必不可少;“打破权利人控制”包括了转移、消灭、设定义务三种行为方式;“取得”的认定应注意素材的“同一性”与“同质性”之别,并强调终局性要求。     

盗窃罪犯罪客体及对象研究

盗窃罪的犯罪客体是他人对公私财产的占有权利而非所有权,因为所有权资格在法律上不可能被非法改变,盗窃行为所(欲)影响或者改变的,只是他人对财物的占有状态,不管他人对于财物的占有是什么性质的占有,盗窃犯罪都是对他人行使占有权的妨害。占有权能够直观反映出盗窃犯罪侵害的社会关系。     

划分盗窃犯罪圈的基本规律

定性盗窃须依据实体标准,《刑法修正案(八)》扩大盗窃犯罪圈却有收紧制裁圈之效;司法解释虽在立法基础上具体定性规则,数额的经年不变却可能令犯罪圈隐性扩张;为此,个案情节的适用能够起到内敛犯罪圈的作用。定性盗窃还须经程序控制,因为出罪案件未经刑事诉讼程序的过滤,相关立法及司法解释之疏漏可能被遮蔽,因动机、赔偿情节豁免出罪的理由可能不甚清晰。     

Familial Identity Theft

Reports of identity theft in the U.S. have risen since the 2000s, which has resulted in financial losses into the billions. Along with this rise is the increased likelihood of familial identity theft. In this study, the differences between familial and non-familial identity theft were explored through the January–July 2012 Identity Theft Supplement collected with the National Crime Victimization Survey. Results showed that family member victims were likely to have experienced one type of identity theft more often than non-family victims were, personal information used for other fraudulent purposes, which included government benefits and driver’s licenses. Factors that allowed for a respondent’s personal information used for other fraudulent purposes included family membership, young persons in the household, and repeat victimization. Findings suggest that few factors can predict the likelihood to experience the misuse of personal information and that familial identity theft may be difficult to detect.     

Automobile theft: Estimating the size of the criminal population

Animal abundance estimation procedures including a new method of Zelterman are applied in the criminological context of auto theft in the Australian Capital Territory. Using goodness-of-fit statistics and comparing the estimates with known clearance rates, it is estimated that during 1987 about 39% of offenders were charged with at least one count of auto theft. The results also indicate the extent of overrepresentation of juveniles in court statistics compared with their relative participation rate in auto theft.     

携带凶器盗窃的刑法解析——对《刑法修正案（八）》的解读

《刑法修正案（八）》中新增了携带凶器盗窃按基本刑档处罚的条款。立法的规范目的在保障人权与保护法益中显然更为注重后者,即在侵害财产之外,因携带凶器盗窃可能对人身权利造成侵害,而将其独立规定为一种盗窃罪的特殊形态,但不能因它对人身造成的侵害危险,而将其认定为危险犯。携带凶器盗窃属于行为犯,依然是对财产的犯罪。应当在行为犯的框架下,判断携带凶器盗窃的未遂形态,并严格界定携带凶器盗窃与携带凶器抢夺的法条关系。     

Opportunities for property victimization: Fixed and random effects models in a cross-national scope

Cross-national research on victimization often does not consider the cultural effects on opportunities leading to victimization. The current study uses a routine activities/lifestyles theoretical framework to examine the opportunities leading to two types of property victimization across forty-five countries. I employ fixed effect and random effect models in efforts to find the best explanation of theft and burglary victimization. The results indicate going out in the evening for leisure activities is an important source of opportunity for both types of property victimization. While a fixed effect model offers the most appropriate explanation for burglary victimization, theft is best explained by a random effects model. For theft victimization, variation in whether or not respondents work or go to school is explained, in part, by the level of development of the country. The findings provide evidence that there are different explanations of opportunity for burglary and theft victimization in a cross-national scope.     

Temporal Patterns of Crime in Singapore

The authors abstracted and studied information from the Daily Crime Information for the crimes of armed robbery, sexual offenses, theft outside dwelling, theft of motor vehicles, theft of bicycles, theft in dwelling and housebreaking for the year 1975. Frequency by time of day and day of week were determined and analyzed for statistical significance. Long term trends of selected crimes were also calculated. The authors advance explanations for the observed patterns.

The limitations of classification, ambiguity in terminology, etc., made comparison with other countries difficult. Comparison could be made only with Korea and the U.S.A. in respect to the crimes of housebreaking and theft of motor vehicles.     

Ancillary consequences of employee theft

The majority of research on employee theft considered the characteristics and predictors of workplace misconduct. When consequences were considered, research centered on the economic losses arising out of workplace offending. This article addresses the ancillary consequences of employee theft. Interviews were conducted with 457 business owners, managers, supervisors, and other employees to assess their experiences with employee theft. By fully understanding the costs, businesses can be prepared to carry out strategies that would offset many of the negative consequences resulting from workplace misconduct.     

AUTO THEFT Offender and Offense Characteristics

Few empirical studies describe auto thieves. The most influential and frequently cited research is that by Wittenberg and Blusterier who characterize auto theft as a “favored-group” delinquency. The findings of the present study challenge this conclusion. Although the majority of those arrested for auto theft are white. blacks are disproportionately represented; most thieves come from lower-class neighborhoods: and the distribution of juvenile thieves by fathers’ occupational status does not appear to differ from that of other delinquents. Five types of out theft are suggested; the offender and offense characteristics are empirically examined.     

Can Reinforcement Induce Children to Falsely Incriminate Themselves?

This study examined whether reinforcement can induce children to falsely incriminate themselves. Ninety-nine children in kindergarten through third grade were questioned regarding the staged theft of a toy. Half received reinforcement for self-incriminating responses. Within 4 min reinforced children made 52% false admissions of guilty knowledge concerning the theft, and 30% false admissions of having witnessed it. Corresponding figures for controls were 36 and 10%. Twelve percent of children admitted to participating in the theft, but the effect of reinforcement was only marginally significant. The findings indicate that reinforcement can induce children to falsely implicate themselves in wrongdoing.     

唐以前盗罪之变迁研究

尽管名称不一,但盗罪无疑是古今刑事法律均极为关注的罪名,今人也习惯于以财产性犯罪来理解传统中国的盗罪。然而,在中国文字初创之时,“盗”其实是泛指“不正”“不当”之义的词汇;至战国时代,才被相对明确地用来指称侵犯财产的行为,但其“不正”“不当”之义也并未完全消失。此种日常语义的多层次性也影响到战国秦至汉代的法律对盗罪的设计,使盗罪一方面以非法取财为主旨,另一方面又保留着超越财产性犯罪之概念限定的可能,从而表现出一定的含义复杂性。至魏晋南北朝,立法者们虽试图对盗罪予以分化或净化,但由于“盗”字的日常语义依然具有多层次性,作为法律术语之盗罪的含义复杂性也无法彻底改变并最终遗留在唐律之中。