Compared with the 1979 Criminal Law, an important change in regulations on the theft of the criminal law in 1997, which is based on the original only in amount as theft standard crime and non crime, the objective elements in the supplementary provisions on the "number of theft". Correct identification of "repeated theft" is the implementation of the new criminal law is a key problem about stealing provisions, this paper is intended to study identified through the repeated theft, in order to practice of correctly handling this kind of benefit common theft cases.

One, "repeated theft" meaning

After the implementation of new criminal law, there have been two different views on that the repeated theft. A kind of opinion thinks, the repeated theft of the revised criminal law in the key to strike, theft, theft recidivists, for many times, only to a certain number of times, shall be convicted and punished, and no need to limit the time limit. If the limit time limit, way too narrow, and easy to be criminals take advantage of loopholes, evasion of legal sanction. Another idea that, for "multiple theft" can only be limited to a burglary or theft of these two kinds of serious crime, to highlight the target of attack, not broad, otherwise it will cause too broad of a combat problems; in addition, the repeated theft, after clearly defining the number and definition of a time limit is necessary. "Explain" the Supreme People's Court on several issues of specific application of law in the trial of theft cases using second kinds of opinions, fourth of the repeated theft made clear: "for one year a burglary or in public places to pick three times above, should be identified as' repeated theft ', convicted and punished as theft". In addition, the provisions of the criminal law "the repeated theft, and larceny" is to a large amount of standard distinction, the repeated theft should not be included in the amount of theft has reached a relatively large amount of degree, this situation can be directly to the large amount of theft processing. So the author thinks that, the repeated theft refers to one year in a burglary or in public places to pick three more times, and a large amount of larcenous amount does not reach the standard case.

Two, "repeated theft"

The author thinks that the repeated theft, theft, should meet the following four conditions:

(a) time: repeatedly stolen time must be limited to one year, the last theft was discovered the crime time started to move back to an ad.

Here the "year" is an anniversary, and should not be interpreted as "the year". Here the "year" can cross year, but still limited in the one year period, not theft of more than one year as many theft behavior. For example: theft last crime occurred in June 1, 2007, then move back until June 1, 2006, theft of the suspect this period should be convicted and punished. If the suspect in May 30, 2006, June 1, 2006 and June 1, 2007 respectively, the implementation of the three indoor theft, and the amount has not reached the amount standard, even if the three crime time close to a year, can not be regarded as crime. If the behavior of the implementation of the 3 act of theft during the period from June 1, 2006 to June 1, 2007, then to May 30, 2006 and before is not up to the standard of larceny prosecution shall not be counted, should only be treated as sentencing.

(two) where condition: repeated theft locations can only be limited to the "user" and "public places"

 1 for "users" understanding

According to the national courts maintain rural stability of criminal trial work summary of a panel discussion: "the spirit of the Supreme People's Court on several issues of concrete application of law in the trial of theft case explanation" section Fourth "Burglary" "households", refers to the family and its members and external relative isolation of living places, including an enclosed yard, for the family living in rented housing, the tents of herdsmen and fishermen as family life places for fishing vessels. Set life, operating in one place, in the operating time is generally not considered as "households".

Supreme People's courtSeveral issues concerning criminal cases the law applicable to robbery and snatch, opinions"Further states," Hu "refers to the residence, the character is for others to family life and relatively isolated from the outside two aspects, characteristics of the former function, the character of place. In general, dormitory, hotel, temporary work shed as should not be regarded as "family", but in certain circumstances, if has the above two features, can also be identified as "households". Judicial practice that the "door" we must firmly grasp the two characteristics. (1) the collective dormitory room is dedicated to providing some unit staff family room, dormitory building some units purchased for their own family living room, some families do not have a fixed residence and living in a hotel in the long term, can be recognized as the "household"; (2) set, operating in one's life premises, in the non operating time (such as the night shop has been closed) should be regarded as the "household"; (3) the unit office building, warehouse, shopping malls, stores, schools, public places of entertainment, museum, exhibition hall, even if someone on the long-term residence, but because do not have characteristics of family life the place, also can not be identified as "household"; (4) for the theft of single family residential, as long as the behavior into residential courtyard, also should be regarded as the home, should not be one-sided understanding of household refers only to enter the residential housing house. Because the independent residential courtyard, the victim has been considered as safe, independent activities, is a part of the families, and has the characteristics of relatively isolated from the outside world, in the courtyard, has violated the rights of victims, brought risk to victims of domestic tranquility. Similarly, enter oneself live alone in the building of the corridor without actually entering a room behavior should also be identified as households. However, for many common hospital, into the hospital should not be considered going into the households; for the new building a household, because in the building corridor part is not an exclusive, so it can not be identified as such in the building into the behavior of people is formed into people's homes, two case specific households all room identified as "households".

2 for the public "pickpocket" understanding

In public places should be understood as for the rest, activity, leisure, play place, main characteristic is more personnel, flow quantity, such as the station, wharf, civil aviation stations, shopping malls, markets, parks, theaters, exhibition, sports field. Public transportation such as bus, train, passenger trains, aircraft, passenger ships can also be identified as public places. But if these places have closed, closed, or public transport has been halted operations, not for people to use, it can not be identified as public places. However, not all in a public place theft line is stealing. The theft of stolen object can only be the victim's body placed in a pocket or a bag of belongings clothes. If the victim in the restaurant hanging clothes in his seat back or will be temporarily placed in her handbag stolen, still be regarded as theft.

(three) the number of conditions: the repeated theft refers to three or more times

"Provisions of the Supreme People's Court on the law applicable to a number of criminal cases of robbery and snatch, opinion" in article third, for "many times" that, each time the robbery to the perpetrators have constituted a crime as the premise, considering the criminal intention, criminal acts of the time, location and other factors objective analysis, identification. For the behavior based on an intent to commit the crime, such as in the same place at the same time, the more robbery; or based on the same offense to the same place to implement continuous robbery crime, such as in the same place continuously on the way many people here robbery; or in a crime in a residential building in several households for the implementation of the robbery of housebreaking, the general should be recognized as a crime.

This opinion also has reference function in that the repeated theft "time". In judging the repeated theft in "time", also can not simply think that for an object implementing a behavior is a subjective, if based on a criminal intent, objectively in relatively the same scope of time and space, the more the continuous implementation of the infringement act the same, should a theft to evaluation. If the behavior of stealing the intention based on, in a crime of a residential building in several households continuous implementation of theft, or the behavior of people in the same public transportation in three consecutive people pick pocketing stolen goods, only hundreds of yuan, shall be deemed to be a crime, but not to each individual behaviour determined as 1 times. For example, the criminal suspect Zhou in June 1, 2007 into a residential building in June 10th and for the theft, theft, into a residential building, has a burglary in the same building 302 rooms and 402 rooms, three times the amount of theft totaling 500 yuan, followed by two times theft belong to several behavior continuous implementation in a crime the characteristics of criminal law, and continuously committed similar, the actual number of theft behavior can only be identified as the meaning of the criminal law once rather than several times. Continuous offence belongs to break the one crime in the criminal law, can be used to explain the repeated theft of "time".

Notable is, for the behavior of a burglary less than three times, in public places to pick is less than three times but the two act together more than three times and the burglary amount insufficient amount standards of behavior, should also be identified as the repeated theft. As people first month burglary two, next month to pick one in public places, but the amount of theft is not large amount standard, can be identified as the repeated theft.

(four) the subjective conditions: illegal objective behavior into people's homes or access to public places has theft or theft

According to "the Supreme People's Court on the law applicable to a number of criminal cases of robbery and snatch, opinion" the first stipulation, household purpose should be illegal. Into another person's residence shall be to commit such crimes as robbery objective. Although the act of robbery happened indoors, but the behavior of people not to commit such crimes as robbery objective into another person's residence, but the implementation of the robbery in the indoor temporarily, do not belong to the "household robbery". Burglary and robbery of housebreaking behavior is similar, but also an important reason for burglary separate provisions out lies in its theft actively ignoring infringe on others residential hospice, subjective malignant compared to general theft more, such behavior is lawful residence crime, has more serious social harm the. So the burglaries also should have corresponding subjective requirements, namely into another person's residence shall be to commit theft crime for the purpose of. Deliberately for home and came into being after the theft, and then act, this situation does not belong to the "burglary". Similar to "Burglary", in the "public theft" was also required to have a clear understanding of behavior.

Three issues, the understanding in the repeated theft

(a) repeatedly attempted theft in question

Many have attempted theft, for example, many households theft within one year of behavior or many times in public places to pick, and if some behavior hasn't obtained any property, these actions should be identified as attempted. For many times in order to calculate the theft, the general can be, as the amount of sentencing plot to be considered. For both the repeated theft accomplished and attempted, in times of calculation must also put forward the attempted theft plot, used as a sentencing. However, for if the behavior of people a year only a burglary or theft three times in public places, and three were attempted, can apply the criminal law thirteenth "proviso" provisions, that the circumstances are obviously minor, little harm, don't think crime.

(two) a can a burglary and attempted burglary as illegal housebreaking

In practice, some courts for a single burglaries have not reached the standard or large amount of burglary attempt to illegally intruding into others' residences, shall be investigated for criminal responsibility suspects. The author believes that, in order to achieve for the perpetrator of criminal responsibility of the crime of housebreaking and found no basis in law.

First of all, "the Supreme People's Court on several issues of specific application of law in the trial of theft case explanation" Burglary purpose is dedicated to combating repeatedly entering the peaceful life of infringement behavior, punishment of the subjective malignant large. On a burglary or attempted burglary can not be attempted theft punished because the behavior has not reached the criminal social harm is larger, the judicial interpretation has no provisions for the above situation can still be regarded as crime.

Secondly, this behavior does not accord with the constitutive elements of crime of housebreaking. According to the provisions of article 245th of the criminal law, the object of crime of housebreaking is a violation of others the inviolability of the residence; objective aspect is illegally intruding into others' residences behavior. Practice is of two forms: one is without the permission of the owner or the owner of the house, in spite of opposition, advice or stop, illegal forced into others' houses; two is entered residential owners did not oppose, but the owner requires that the perpetrator exit behavior person refused to withdraw behavior; the subjective aspect is deliberately, the actor who knows others housing deliberately trespass, with destruction of life peaceful intentions. Burglary in the "home" behavior, the objective aspect of constitution of the trespass, subjective aspect but dominate the behavior of different and trespass, burglary in the "people" in order to achieve the purpose of theft and trespass, residential behavior has a subjective intent of illegal breaking into others' houses, home invasion in order to disrupt the lives of others, destruction of the peaceful life. Although a burglary behavior have on residential security on the subjective consciousness of laissez faire, but the subjective elements of crime of housebreaking should be direct intention, should not be indirect intention. If such acts constitute the cognizance of crime of housebreaking, does not meet the trespass of crime, but also against the subjective and objective consistent with the principle of.

Finally, the burglary behavior cognizance and punishment to illegal residence crime, inconsistent with the legislative intent of crime of housebreaking. The crime of illegal personal housing provisions of our criminal law legislative intent is to punish those who intentionally and illegally invade others residential behavior, is to enable those who knowingly others residential break, infringement of the inviolability of the Residence Act into the scope of criminal law adjustment, so as to protect the housing the inviolability of the law profit objective. If only to punish a certain behavior, and forced for the behavior that the other charges, not only violates the principle of legality in the national predictable principle, also have the balance between the criminal law system may break, resulting in erroneous application of the law in the aftermath of the objective.