Study On Several Difficult Issues Of Larceny

" The antenna of the criminal law can't stretch long with the result that endanger the common behavior of the honorable citizen, the provision of the criminal law can't unclear its meaning with the result that can't warn the citizen which kind of behavior should be forbid." The text guides in such criminal law's principle, I hope passing the analytical study to make misty place of law clear and make the lacked law make up.The text has three parts totally. In the first part, it is mainly analyzed whether the behavior of theft is certainly secret or not , passing four small aspects to explain, firstly introducing the common saying of the current law of our country and the theories, then the theft's way that behavior must adopt the secret, this also steals the offense to discriminate between other offenses exactly of a shows the obvious characteristic, introducing a case about opening-thieves immediately after, according to the current law and saying of the theories field, such circumstance can't be brought into the scope of the law system , but obviously such behavior does not give the pertaining to crime punishment, it is very disadvantageous for the protection to the right of the citizen's property. Thus the above causing the antinomy of the theories and practice. Checking against British and American penal code in related rule ,we discover that does not appear such problem in their law system, because they adopt the concept of "big thieves and burglars", stealing, seizing, deceiving the etc., the criminal charges all unite as one , stealing also does not need to adopt the way of the secret pilferage. This avoids the trouble to settle the nature, and economizes the resources of judge. But do we want to adopt such mode? The writer thinks the answer is negative, in writer's opinion for the difference in the law system and history tradition, adopting the lawmaking mode of the big thieves and burglars in our country is not all good things, we can't bring over here and then use anything, and still consider the different reaction. Under the existing mode of the our country, we still protect the victim by explaining in detail, such as when the property is communion, we can further explain" secret steal" as the secret to the any owner.The second part mainly discusses what is the body that the thieves and burglars offense exactly. The educational circles mainly exists the saying of ownership, the saying of ownership adding to occupying and the saying of controlling, but each of these theories has own disadvantage, and can't cover all situations in practice, the writer aiming at the present condition and comparing with British and American penal code, puts forward that the object of stealing should be the ownership system. Can say that the civil law pays attention to the ownership, penal code pays much attention a kind of order, even pay attention to the ownership system, but whether does the person possesses the ownership in the system back, or whether does the power ability separate with the owner but be possessed by the others, or whether is the ownership subjected to illegal of encumbrance, these shouldn't be what the penal code wants to discuss , but should be stayed to solve for civil law.The third part is absorbed in studying the real estate. It is disputed very greatly in times whether the real estate can become the object of stealing offense. This text firstly analyzed which characters there should be to become the object of stealing offense: The wealth and properties must be controllable; The wealth and properties must have the value; When it is rob, the wealth and properties must just be controlled by the others. And the main reason is discussed that the real estate can't become the object of stealing offense. However, the phenomenon of secretly occupying the real estate belong to others in the realistic life, still can't be solved. Comparing to British and American penal code, they conditionally bring the real estate in to stealing offense, on the larger degree protect the private property power of the citizen, that is worthy of us drawing lessons from. Taking a wide view to the penal code of our country, the protection to the real estate is very little, but the real estate is more important than the movable property, that has to make us introspect whether to strengthen the penal code protection to the real estate. In regard to textual range of research, the real estate should be brought into the object scope of theft. There are three reasons. Firstly the object of stealing is the public-owned and private wealth and properties in our country, does not emphasize the movable property. Secondly there is not distinction in essence between secretly stealing the movable property and occupying the real estates in the secret of behavior and the result of behavior- obtaining the wealth and properties. Thirdly in the aspect of transferring and changing the ownership, the real estate must pass by strict procedure, whose ownership can't be changed after being secretly occupied will, however, the ownership of movable property also can't be changed after being stolen in the civil law. So there is still no distinction in essence between them. But on the lawmaking method, owing to the natural difference of physical quality between the real estate and movable properties, it is still not proper to directly modify the law, but it is suggested to alone legislate.