论盗窃罪“秘密性”的取舍——“秘密窃取说”与“平和窃取说”之双重批判

关于盗窃罪的标准,学界提出了＂秘密窃取说＂和＂平和取财说＂。＂秘密窃取说＂坚守概念类型但对概念类型的偏向存在疑问以及易造成处罚的漏洞,＂平和窃取说＂强调处罚公正以及区分标准客观化却忽视对概念类型及立法现实的把握。＂修正的平和窃取说＂结合了两种学说的优势与劣势,以取财方式作为划分标准,以区分盗窃罪、抢夺罪和抢劫罪。＂修正的平和窃取说＂在概念类型的坚持、处罚的公正、立法现实的契合性以及标准的明确性方面更具优势。

Discussion on the Trade-off Theory of ＂Secrecy ＂ in Stealing

As a standard of stealing, there are two theories in academics： secret stealing and placid stealing. The former one emphasizes the conceptual category with confusion about its deviation and the easily-been-punished; the later one emphasizes the fairness in punishment and the objectivity in different standards, but neglects the conceptual category and the legislation. The amendatory theory of placid stealing, with advantages and disadvantages of these two theories, takes the means of stealing as the determining standards so as to distinguish theft, plunder and robbery. This theory has more advantages in the conceptual category,the fairness in punishment, the legislation appropriation and the clear definition of standard.