但书、罪量与扒窃入罪

刑法修正案八生效以来,扒窃应否一律入罪、但书是否得为扒窃的出罪依据之争,困扰着我国刑法理论研究与司法实务。解决这一问题的理论前提是,建立对但书及其规制下的罪量类型、政策机能、体系定位、出罪机制的基本共识,消除刑法知识转型时代不同话语系统囿于语境差异的对话困难。通过以阶层犯罪论体系与我国刑法规定为背景,立足于刑法教义学与刑事政策的融通,分析我国刑法特有的罪量要素的类型与政策功能,可以认为,扒窃包含为但书所规制并须结合刑法的规范保护目的进行涵摄的罪量要素。从扒窃行为的客观不法与“扒手”的人的主观不法两个维度,才能揭示扒窃的规范含义,并据以依次判断扒窃行为是否该当扒窃型盗窃罪的构成要件。扒窃作为盗窃罪的不法行为定型,既表明我国刑法包含涵摄罪量要素,也展现了我国刑法以行为不法为基础,重视人的不法的新动向。

Proviso, Amount or Circumstance Element of Crimeand Criminalization of Pickpocket

Since the Eighth Amendment of Chinese Penal Code entered into force, it has frustrated Chinese criminal law scholars and judicial practice whether the pickpocket should be inculpated without exception, or some minor pickpocket could be exculpated according to the proviso in the Article 13 of the General Part of Chinese Penal Code, i.e., "but when the circumstances of the crime are obviously minor, it should not be considered as a crime". Under the background of the three-layer structure of crime and the provisions of Chinese Penal Code, and based on the integration of criminal law dogmatics and criminal policy, this article explores the function, type and systematic orientation of the proviso in Chinese Penal Code and the amount or circumstance element of crime regulated by the proviso by taking the example of the theft of pickpocket. This article argues that the proviso in the Article 13 provides the element of crime for the legislator as well as for the judges, which functions both legislatively and dogmatically as the criminal policy guidance. Although implicit amount or circumstance element of crime is not provided explicitly by the Special Part of Chinese Penal Code, it is subsumed by the proviso of Article 13 and the protection purpose of the definitions of crimes in the Special Part of Chinese Penal Code, thus still the important foundation to assess whether an act has fulfilled a definition of a crime. The wrongdoing of the theft of pickpocket is not only based on the objective wrongdoing of the act of pickpocket, but also dependent on the subjective wrongdoing of the pickpocket. The subjective wrongdoing of the pickpocket is the implicit amount or circumstance element of crime which is subsumed in the wrongdoing of pickpocket and elevates the wrongdoing of pickpocket to a criminally punishable level.