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Research On Several Problems Of Crime Of Carrying Murder Weapon

Posted on:2022-10-06Degree:MasterType:Thesis
Country:ChinaCandidate:Y R GaoFull Text:PDF
GTID:2506306323492634Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
In the criminal law of our country,the crime of endangering public security,the crime of infringing property and the crime of obstructing social order clearly stipulate the crime of carrying a weapon,and the concept of carrying a weapon is also involved in the judicial interpretation of the crime of larceny,robbery and the crime of picking a quarrel and provoking trouble.But at present the criminal law and judicial interpretation lack of conceptual provisions on the carrying of weapons,making the theoretical and practical circles on the carrying behavior and the meaning and identification of weapons there is a big dispute.From the analysis of subjective and objective factors,carrying should be the behavior that the doer puts the goods under the control of reality and has the possibility of taking them at any time out of the subjective carrying intention.Subjectively,the actor needs to have the subjective intention of carrying the weapon,and objectively,it can be carried directly or indirectly to satisfy the actor’s realistic domination of the weapon he is carrying.It is concluded that carrying behavior should meet the three characteristics of subjective initiative,arbitrariness and reality domination,and reality domination is the key to distinguish carrying behavior from holding behavior.The theory of weapon identification mainly includes the theory of lethality and the theory of intimidation.The application of the threat theory is relatively limited,which cannot meet the recognition of the weapon in reality.In the theory of lethal force,the lethal force of the weapon in nature is determined by the weapon itself,while the weapon in use is determined by the specific way in which the weapon is used,so it is inevitable to expand the scope of the weapon identification unreasonably.The judicial interpretation of our country classifies the weapons into "the instruments prohibited by the state to carry personally" and "the instruments sufficient to endanger the personal safety of others".This paper advocates that the weapons must meet the physical characteristics of man-made tangible solid objects and the unique lethal characteristics of the weapons themselves,so as to limit the range of the weapons in use.In order to solve the problem of repetition and vagueness of language,it is suggested to standardize the connotation and extension of carrying weapons,and unify the standard of language in the legislative system.At the same time,it is necessary to clarify the status of carrying a weapon in the constitution of a crime,clarify the conviction circumstances of carrying a weapon and the punishment standard of aggravating circumstances,and make independent evaluation of the weapon as the circumstances of committing a crime or aggravating punishment.As a non-criminal means,whether to carry a weapon should be distinguished in the sentencing stage,and the severity of the penalty should be reasonably determined.In the process of judicatory application,special attention should be paid to the difference between crimes,in principle,the act of carrying weapons should be limited to the implementation stage,and the accomplice of the crime of carrying weapons should be identified strictly according to the constituent elements of the joint crime.
Keywords/Search Tags:crime of carrying murder weapon, carrying behavior, the murder weapon, judicial application
PDF Full Text Request
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