The Application And The Understanding Of The Robbery Of Housebreaking

Citizens’ houses are highly protected by each country’s law. In 1997, robbery of housebreaking is listed as the head of 8 aggravated offenses in China, relative to basic offense of robbery, it is allocated the higher level of statutory sentence like fixed-term imprisonment more than 10 years, life imprisonment or capital punishment, combined with penalty or confiscation of property. This illustrates that this kind of housebreaking robbery contributes to serious social and personal dangerousness. Therefore, the detailed study of this kind of criminal has importantly theoretical significance. Currently, although Supreme People’s Court has enacted judicial interpretation for three times to stipulate the scope of residence, the intention of housebreaking and confirmation of transformation-type housebreaking robbery, but the partial meaning and the scope of stipulation are quite ambiguous. As a result, in judging cases which happened in reality they still remain controversial. Thus, further understanding and researching on housebreaking robbery has importantly realistic significance. Based on the divergence of housebreaking robbery in practice, this dissertation has launched deep studies and proposed my own opinions on the defining of residence, the purpose and behavior of housebreaking robbery and the defining of transformation-type housebreaking robbery.This article has four parts, a total of more than 34000 words.Firstly, this part introduce the definition of robbery, robbery of housebreaking and transformation-type housebreaking robbery. During the first part, it has mainly elaborated the definition of robbery, the general situation of housebreaking robbery and the legal interests violated by housebreaking robbery and naturally established the theoretical support for follow-up study. This section has introduced that robbery is the criminal of violent and threated pattern, which violates victim’s will and invades public or private property on purpose. Housebreaking robbery is the circumstance of site aggravating of common robbery. This dissertation has analyzed the legal interests violated, including the property rights of nation, society and people, the human rights, peace and warmth of residence and privacy.Secondly, the reasonable standard of defining residence is: we primarily confirm place character of residence, then distinguish whether it is segregated from outside, which is easy to judge, furthermore, verify whether it has the feature of family life. If the residence is segregated from outside and has family life, then it is considered as the residence in housebreaking robbery. In practice, how to confirm the “residence” in housebreaking robbery still has a great controversy on residence and commerce mixed building, dwelling of prostitutes and motor homes and so on.Thirdly, to define what is residence, it is necessary to combine two significant characters mentioned above, have a clear understanding of situation, area and time, and take case by case to avoid lump together. In other word, for the establishment of housebreaking robbery, in the subjective way, offender must have the intention to offence the resident and property indoors and understand what is residence, and realize himself has entered someone’s house; in the objective way, offender has implemented violence, threat or other means restricting people to resist to suppress the victim indoors, along with robbing property. Robbery behavior must take place indoors, but the persistent status of violent behavior should be noticed, whether robbing assets indoors has no effect on confirming housebreaking property.Finally, this part illustrate that the initial behavior of transformation-type housebreaking robbery not required to satisfy criminal standard includes defrauding and grabbing indoors, on the condition that other critical criteria is fulfilled, only if initial behavior has been done, can transformation-type housebreaking robbery be established. To confirm transformation-type housebreaking robbery, there are four requirements: 1. Subjective intention is to shelter illegal properties, resist arrest or destroy evidence; 2. Offender has been implemented steal, defraud or grab behavior indoors objectively; 3. Applying violence or threating on the spot; 4. Serious degree of using violence.