On The Research Of Burglary Convert Robbery Problem

The only differences between larceny and robbery lies in the means of obtaining property,besides this,there is no differences in the intention to encroach other’s property.Therefore,each country,like Germany,Japan and Taiwan area all made legal provision of specific condition concerning about the larceny convert into robbery,and stipulate after-fact robbery as separate crime,and apply the punishment of robbery.The criminal law of our country stipulates in article 269 that the robbery convert into robbery should be punished by that.In addition,China has issued two concerning judicial interpretation,"about hearing number of rob and divest criminal case opinions"(abbreviation on ‘rob and divest opinions’)and "about hearing number of robbery criminal case opinions"(abbreviation on ‘robbery opinions’)successively,which has made detailed provisions on the related issues of larceny convert into robbery.But with unceasingly arisen of new situations and problems and different definitions of certain terms and caused by the lack of legislation,and grounds like this,make the current criminal legislation cannot effectively solve all sorts of troubles faced in judicial practice.And,the questions of burglary conversion has more prominently,for example,after "amendment of criminal law(eight)" has provide burglary as essential count,would burglary can apply to "hamesoken" when it convert into robbery? If it does,would it contravene non-dual evaluation? and would it shall be affirmed as "hamesoken" when the actor use force or threat by force after burglary has detected? and the problem that would the degree of force and threat by force has discrepancy when burglary convert into robbery and "hamesoken" still need to be solved.Through the judicial data analysis of burglary conversion related judgment documents,we found the main disputed problem of burglary convert into robbery is affirming normal robbery or hamesoken.In particular,it has typically characteristic on quantitative,contentions and sentencing.there are several aspects:firstly,there exist discrepancy between the provisions of judicial interpretation.Such as "rob and divest opinions" and "robbery opinions" has repugnancy on "hamesoken" cause the same case facts has different cognizance only because of the applicable law,protruding the same case different sentence’s phenomenon.Second,there is lack of legislative response.there is no legislative response if the degree of force have an impact on the burglary convert into “hamesoken”,make the different result in judicialpractice.Thirdly,the application of “principal of non-dual evaluation”and “principal of suiting punishment to crime”.After the amendment of criminal law(eight),if the circumstances “enter the household”has been evaluated while the burglary convert into robbery and can the situations like,has not obtained the property or got less property,did not cause any bodily harm could be determined as“hamesoken”.Finally,there is no restriction on the "the pattern of hamesoken".In judicial practice,it is possible to be classified as "hamesoken" whether it is the crack into the door or the following way.This practice of not restricting the way of entering the household,will lead non-corresponding on illegitimacy get the same punishment,which contravene principal of suiting punishment to crime.The practice of criminal judicature is an important basis for examining whether the criminal legislation has achieved good legal effect and social effect.Therefore,According to judicial data to investigate the burglary convert into robbery,could find the real problem in judicial practice correctly and can provide stability material to concrete criterion.So,we based on the criminal judicature database in JUFA CASE,via analyze the identified method of 504 court verdict about burglary conversion,to find the problems on specific recognition,and locate the deep reasons,and try to provide a concrete criterion to current judicial predicament.