On the way home from work, the defendant A saw the victim B (female) walking alone. The defendant A drove B to the car on the ground that it was raining and called B to get on the bus. After getting on the bus, B took a seat in the middle of the van. Due to the idea of rape during the driving at night without a person, he drove the car along the village road to the village channel. A gets out of the car after stopping the car, pulls the door, and uses the threat of intimidation on the ground that the victim B pushes him into the channel without obedience. He wants to have sex with B forcibly, and then tries to rape for his own reasons. In order to prevent the victim from reporting to the police, defendant A forcibly asked B to carry Xiaomi's mobile phone with him. When B was thrown away, B escaped. A picked up the mobile phone and drove it away in the diversion channel while driving away.
During the review process, it was not disputed that defendant A violated the will of the woman and used force or coercion to have sexual relations with women. His behavior constituted a crime of rape. The focus of the dispute was: how should defendant A use violence to snatch B's mobile phone? Evaluation? One view is that defendant A forcibly robbed victim B's mobile phone for the purpose of illegal possession, and established the crime of rape, robbery, and multiple punishments. Another view is that defendant A snatched B's mobile phone just to prevent B from reporting to the police afterwards. He later discarded the mobile phone in the diversion channel, not for the illegal possession of B's property, without the purpose of illegal possession, and incompatible with the crime of robbery. The subjective constituent elements of the crime are only one crime of rape.
I agree with the second opinion.
Robbery refers to the act of forcibly robbing public and private property by using violence, coercion, or other methods for the purpose of illegal possession. In addition to the accidental accident, the subjective elements of robbery also require illegal possession. The purpose of illegal possession refers to the meaning of excluding right holders, controlling the property of others as their own property, and using and disposing of it in accordance with the purpose of the property. The purpose of illegal possession is composed of "exclusion meaning" and "use meaning". The former focuses on the aspect of law, while the latter focuses on the aspect of economy. Exclusion means that it is punishable to prevent others from using the property, or that exclusion means causing punishable legal harm (harming use). The meaning of use means the use and disposal in accordance with the possible use of property. The meaning of use is not limited to the meaning of using or disposing in accordance with the economic or original use of the property. Anyone who acquires other people's property with a meaning other than simply destroying or concealing it may be evaluated as having the use and disposition of following the possible use of the property. the meaning of.
Judging from this case, the act of robbing B's mobile phone is very obvious. After robbing B's mobile phone, A did not stay with him, but instead threw it directly to the Yinwei Canal. It did not have the "meaning of use" and further determined that it had no purpose of illegal possession. 手机，购买价格为1300元，使用时间超过了两年，故达不到故意毁坏财物罪立案标准，不成立故意毁坏财物罪。 In this case, A obtained other people's property with the meaning of pure destruction, and only had the meaning of "exclusion". In combination with the statement of victim B, the mobile phone was a Redmi 4 mobile phone. The purchase price was 1,300 yuan, and the use time exceeded two years. The crime of intentional destruction of property cannot be established without reaching the standard for filing a crime of intentional destruction of property.
Although criminal suspect A committed rape and robbery, the purpose of stealing the mobile phone was only to prevent the victim from reporting to the police. After taking away the mobile phone, it was discarded in the diversion channel. The criminal suspect did not want to illegally possess the mobile phone. Its subjective purpose is only rape. According to the principle of consistency between subjectivity and objectivity, this case does not constitute additional crimes of robbery and punishment, but the act of stealing and discarding the victim ’s mobile phone should be considered as aggravating circumstances.
(Author: Chencang Baoji City District People's Procuratorate Wu Jing Editor: Wang Jin)
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