Study On Looting Bearing Lethal Weapon

Criminal Code Law item 2 article 267 of our country prescribed that looting bearing lethal weapon should be punished according to article 263 of the law. For the application of it, although the Supreme People's Court had made some detailed ruler in 2000 and 2005, there were still lots of disputation whether in study or judicial practice field on comprehension or cognizance of the looting bearing lethal weapon. In order to apply law correctly, punish crime accurately and protect the legal rights of both criminal (suspect) and victim this article made some research on looting bearing lethal weapon.The article defines firstly the two aspects of weapon and taking. Weapon means the apparatus with much execution that is used to jeopardize the personal safety (such as wounding or killing persons) and lead to fear sense. The law characteristic of weapon is that it can lead to a greater sense of danger and is used to carry out illegal or criminal acts, while the physical characteristic is that they are going to endanger the safety. Taking means, in or out side of the residence where people engage in daily life, carrying a certain thing or nearby, and using it to the behavior of the reality under one's will. As for definition of the behavior in looting bearing lethal weapon, not only the means of the carrying and the subjective factor of the actor, but also the custom, habit and special identity of the actor should be taken into consideration.On the basis of generalizing, commenting and analyzing the three different views of the present study and theories, this article explores and analyzes the law characteristics of looting bearing lethal weapon. It is the legal fiction that looting bearing lethal weapon is condemned as crime of robbery from the aspect of Criminal Code Law. In the aspect of constitution of a crime, it does not need to match the constitutive requirements of robbery, but to match the constitutive requirements of looting. However, it does not mean, whether formally or objectively, that the behavior of looting bearing lethal weapon is all singular condemned as crime of robbery. In judicial practice, this is not only the requirement of the principle of a legally prescribed punishment for a specified crime, but also of the principle of suiting punishment to crime. At the same time, this can also be an alternative way to prevent the high frequency of the crime of robbery.The definition of looting bearing lethal weapon correctly must follow the principle of correspondence between subjectivity and objectivity. In the judicial practice, only by insisting on the principle of correspondence between subjectivity and objectivity, can the principle of suiting punishment to crime be carried out. During punishing those who loot bearing lethal weapon for crime of robbery, the actor's subjective investigation must be taken into concern. Or else the degree of the ruin from the actor can not be weighed properly.Lastly, the article did some necessary explore on the action of looting bearing lethal weapon about the criminalization and noncrime, accomplished offense and abortive, amount, relationship between looting and robbery as well as sentencing.