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盗窃既遂、未遂的划分,不仅仅作为情节轻重的差别影响到量刑,许多情况下更直接影响到定罪。按有关司法解释,盗窃未遂,如非情节严重,不应定罪处罚。而盗窃罪是否构成,某些情况下又会对其他犯罪的构成产生影响(如刑法第二百六十九条)。关于盗窃既遂、未遂的标准,理论界各执一词,由于没有统一的司法解释,司法界缺乏科学、统一的标准,导致在司法实践中相同的情节因执法者认识不同而有差别悬殊的处理结果,造成司法混乱,不利于法律公正与尊严。本文拟从我国刑法理论关于盗窃既遂、未遂标准的争议入手,结合法理和司法实践经验,通过对失控说理论及其相关概念的分析、界定,为统一标准之建立提供参考。
The attempted and attempted division of theft not only affects sentencing as a difference in circumstances, but also in many cases directly affects conviction. According to the judicial interpretation, attempted theft, unless the circumstances are serious, should not be convicted and punished. Whether theft is constitutional or not will in some cases affect the composition of other crimes (eg, Article 269 of the Criminal Law). With regard to the standard of the attempted theft and the attempted theft, there is a lack of a scientific and uniform standard in the judiciary due to the lack of a uniform judicial interpretation, which leads to the disparity between the same circumstances in the judicial practice due to different knowledge of law enforcers As a result, judicial chaos is caused, which is detrimental to the fairness and dignity of the law. This article intends to start with the controversy of criminal law theory about the standard of attempted and attempted theft. Combining with the legal and judicial practical experience, this article analyzes and defines the theory of uncontrollable talk and its related concepts to provide a reference for the establishment of unified standards.