| Robbery is a commonly seen crime in China.As specified in the Criminal Law of the People’s Republic of China,those who intrude into another person’s residence to rob,also known as,those housebreaking robbery criminals shall be sentenced to fixed-term imprisonment of not less than 10 years,life imprisonment or death and shall also be fined or sentenced to confiscation of property.Albeit related legal interpretation on the keyword“household” has been given by authorities,much room for disputes on the judicial determination of “household” remains.In this study,housebreaking robbery cases in the latest ten years that were in connection with such judicial determination are included for analysis on factors that are affecting the determination.The analysis is centered on two featuring characteristics of “household”: place and function.Based on the analysis,problems in relative practice and countermeasures are proposed.The first part of the thesis presents the state of the judicial determination on “household”.Sample statistics suggests that quite a large proportion of robbery cases is housebreaking robbery,that most housebreaking robbery cases are in an ordinary house,that such houses feature multiple places and a wide range of types,and that most of such crime sites are not the conventionally agreed “household”,which induces a problem: different courts dispute on whether a site shall be determined as a “household”.The dispute stems from two aspects: the judicial determination standard of the closure degree of the site,and whether the persons at the site shall or shall not be in genetic connection.The second part of the thesis discusses the judicial determination of the site character of“household”.In judicial practice,courts mostly determine a “household” by two characters:site and function.The determination of the site character mainly relies on two factors: closure degree and excludability.Different courts have a relatively consistent determination on excludability,but a discrepant one on closure degree: some advocate psychological separation as the key criterion while ignoring the actual on-site situation;others assert to judge upon a combination of facilities at the site and subjective will.The thesis suggests judging mainly by the objective elements,such as the time living at the site,the purpose of the site,whether the site is equipped with fundamental safety facilities,etc.,added with the subjective will.The third part elaborates on the judicial determination of the function character of "household".There are two primary factors in this regard: the function of the site,and the relation of persons at the site.For multi-functional places like a commercial-residential building,the thesis puts forward that the determination on the time and nature of the site during transition from business to non-business status should be based on the dominatingfunction of the site at the concerned time,focused on the status of the site before the "transition",and be subject to the principle of in favor of the defendant whenever there is a doubt.Furthermore,the genetic connection between persons at the site is not a must.The fourth part of the thesis proposes a more in-depth comment on the rules of the judicial determination of "household".Firstly,a “household” shall be a residence.Secondly,the determination of the "closure degree" and the "excludability" for a site to be a “household”shall take into account: the basic separation facilities,the social cognition that the concerned site is separated from outside,the domination,usage,disposal,and free access rights of the persons at the site to the site space,and so on.Thirdly,the determination of the function character of a site shall be with an eye to whether the site objectively functions for family living and whether the persons have an actual family life at the site,but the persons do not necessarily have to be in a generic connection,actual or fictitious.For special sites that are in dispute in the judicial practice,like motor homes or dormitories,the determination shall be on account of common rules and in combination with the actual site situations. |
