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我国刑法理论中关于盗窃罪的本质,秘密窃取说一直处于通说地位。近年来,一些学者在引用以德日为代表的大陆法系国家刑法理论及台湾地区“刑法”理论的基础上又提出了平和窃取说。该说在受到我国部分刑法学者支持的同时,也遭到了很多质疑。本文认为平和窃取说违背了罪刑法定原则,忽视了我国刑罚体系的合理性,错误的运用了比较解释的方法,缺陷较多,难以适合我国刑法理论及刑罚体系。
The theory of criminal law in China about the nature of theft, said theft has always been in the position. In recent years, some scholars have put forward the theory of peaceful stealing based on the theory of criminal law in the civil law countries represented by Germany and Japan and the theory of “criminal law” in Taiwan. This theory has been questioned by some criminal law scholars in our country at the same time. This paper argues that peaceful theft refers to the violation of the principle of legality of crimes and penalties, ignores the rationality of the criminal system in our country, misapplies the comparatively explained method, has more defects, and is difficult to fit the criminal law theory and penalty system in our country.