论盗窃罪的未遂形态-刑法学专业论文.docxVIP

II II Abstract Attempted pattern of larceny is one of the most difficult and complicated issues in the realm of the theory of criminal law and criminal judicial practice. In criminal law academia in China, there are two statements: negative and affirmative on whether existing attempted pattern of larceny or not. After studying scholars’ viewpoints, this thesis believes that attempted pattern does not exist in the essential offense of larceny but only exists in aggravated crime of larceny as its attempted action is a more serious crime and has to be punished to protect legal interests. Attempted pattern of larceny’s constitution demands three elements according to the general theory of attempted crime. Firstly, the offender has already set about larceny. “Set about larceny” is an action that the offender starts stealing in the purpose of unlawful possession and the action is dangerous for victim’s property. Secondly, the offender is unsuccessful. “Unsuccessful” means that victim does not lose his control of his own property. Thirdly, larceny is unsuccessful because of reasons out of perpetrator. “Against the doer’s will” in larceny means any kinds of subjective and objective factors which go against offender’s will and stop him from stealing so as he could not achieve in stealing. Judicial determination of attempted patterns of larceny should be dealt with particularly as “set about” and “unsuccessful” of stealing in private places, in public, Internet or things with GPS system etc. are different. Among reasons out of perpetrator, perpetrator’s wrong subjective understanding is more complicated than objective situation out of perpetrator and perpetrator’s own objective situation. So, it’s necessary to make a thorough study to it. Key words: larceny; attempted pattern; foundation ; constitutional element; judicial determination PAGE PAGE IV 目 录 摘 要 I Abstract II 第 1 章 绪论1 1.1 选题的背景和意义1 1.2 研究现状1 1.3 研究思路与方法3 1.4 本文拟解决的问题3 第 2 章 盗窃罪存在未遂形态的根据5 2.1 盗窃罪