On The Lethal Weapon Affirming In The Case Of Crime Against Prorerty

Larceny and crime of forcible seizure are high incidence of crime in our nation.Article 264 and Article 267 of criminal law of our nation has separately specified two criminal scenarios:burglary with weapon and snatching with weapon.As the two criminal provisions only require the weapon to be "carried",and there is no externalization of illegal intention of the perpetrator,it increases the difficulty of lethal weapon identification.Currently the mainstream theory of lethality are unclear in identification criteria,lack of system construction,and no good for practical guidance.Through the annotation research,comparative study,case study and other methods,this article discusses the lethal weapon identification of property crimes,and analyzes the relationship between awareness of weapon use and weapon identification.The whole article is mainly divided into four chapters except the foreword and the conclusion.Chapter one,the examination on super dogs stolen case done by Cheng xxxjiang,Kong xxxchao.In this case,two defendants stolen dogs three times by carrying,crossbow,poison needle,pills and other tools,and there is a plot that using "spanner"to hit the victim in the third case when failed in the crime commitment.So the identification on nature of these weapons has become the key of whether the previous two dog robberies constitute the larceny.The results of judgment indicate that the court identifies the crossbow as the lethal weapon due to its strong lethality,however,the case shows that crossbow carried by defendant is only used for stealing dogs.So the results are disputed so as to lead to two difficult questions:whether the lethal weapon identification requires the awareness of weapon use?What is the relationship between awareness of weapon use and objective aspects?Chapter two,flaws in current weapon identification research.Combing the research results of weapon identification in Japan,Germany,USA,UK and our Taiwan region,it indicates the obvious transformation trend from pure objective identification to starting paying attention to subjective awareness of the perpetrator.Our nation carried out objective identification on weapons taking "Lethality" as the mainstream and promoting to take "Lethality" as the core element,while the research in later stage pays more attention to the realistic danger resulted from the weapon,the comparison of two identification standards between larceny and snatching,and fragmentary consideration on subjective awareness.So equating the lethality of an instrument with the danger of a weapon will cause the problems,such as lack of illegality,confusion of identification elements,too wide scope of attack.It should convert the abstract dangerous standard into specific dangerous standard for identification,while the judgement of specific danger needs to consider the awareness of weapon use.Chapter three,identifying the awareness of weapon use.Only with the awareness of weapon use can it be established as intentional,sufficient social harm and criminally punishable,therefore the awareness of weapon use is one of the factors to establishing a crime.Under the influences of the traditional objective illegality theory and the consequenceless illegality view,it is generally considered that constitutive elements are purely objective,and weapons as the constitutive elements shall also be objectively judged.But in a " crime in which a subsequent act is the object "(abbreviated as two-conduct crime),subjective intent has the identification function of illegality and can not be counteracted through objective means due to its crime structure,so it shall exceptionally become the subjective constituent elements.Awareness of weapon use just is the subjective intent of this kind of two-conduct criminals,belongs to subjective constituent elements.It makes the instruments into lethal weapons by being attached to the instruments which have the lethality,so awareness of weapon use shall become one of identification elements.Chapter four,the identification method of weapon for the property crime.After the introduction of "the awareness of weapon use",it shall take the dangerousness as the core,reconstruct weapon identification elements into four elements,such as lethality of instrument,awareness of weapon use,portability and instrument features,and according to different requirements on the degree of personal danger from the larceny and snatching,and make level distinction to each element standard.In the use of consciousness,mainly through three ways,such as criminal presumption,direct proof and indirect proof.From the disclosure of the case,it can not identify that Chen xxxjiang and Kong xxxchao carried the lethal weapons in the first two crimes.