案情简介
2011年至2012年2月,被告人甲某六次驾驶集装箱卡车在上海市某区加油站加入0号柴油后,乘工作人员不备高速驾车驶离加油站。涉案柴油价值共计人民币12495元。
其中,2012年2月间,被告人甲某两次驾驶集装箱卡车在上海市宝山区、浦东新区某加油站加入0号柴油后,为逃避支付油费,加速驾车驶离加油站,致使抓住车门阻拦的加油站工作人员倒地受伤。经鉴定,两次涉案柴油价值共计人民币3835元。
2012年2月底,被告人甲某主动投案,如实供述了上述事实,随后其家属退赔了涉案全部油款。
案例选送:上海市第一中级人民法院
诉争焦点
本案争议焦点为被告人甲某加霸王油的行为如何定性。
法院判决
一审法院认为,被告人甲某以非法占有为目的,采用暴力方法劫取单位财物,其行为已构成抢劫罪；以非法占有为目的,乘人不备公然抢夺单位财物,数额巨大,其行为已构成抢夺罪,应两罪并罚。甲某犯罪后能自动投案,如实供述抢劫犯罪事实,系自首,对抢劫犯罪可以从轻处罚；到案后如实供述抢夺犯罪事实,可以从轻处罚;能够退赔犯罪所得,可以酌情从轻处罚。判决被告人甲某犯抢劫罪,处有期徒刑四年九个月,罚金人民币六千元；犯抢夺罪,处有期徒刑三年六个月,罚金人民币四千元,决定执行有期徒刑七年六个月,罚金人民币一万元。
二审法院认为,原审被告人甲某以非法占有为目的,乘人不备公然抢夺单位财物,数额巨大,其行为构成抢夺罪。甲某在抢夺过程中为抗拒抓捕而当场使用暴力或者以暴力相威胁,其行为已构成抢劫罪。裁定驳回上诉,维持原判。
判案分析
一、“加霸王油”的行为不构成盗窃罪。认定盗窃罪,理论界主要有两种观点。一种观点认为,盗窃是指秘密窃取公私财物的行为。另一种观点认为,盗窃行为并不局限于秘密窃取,公开窃取行为也可以构成盗窃罪,盗窃罪和抢夺罪的主要区别在于行为人是否有不法暴力作用于被害人。对于本案,该观点认为甲某未对加油站员工使用不法暴力,只是在加油后乘人不备逃离现场,故其行为不应当认定为抢夺罪,而应当认定为盗窃罪。
我们认为后一种观点有待商榷。第一,从立法结构来看,公开窃取在我国刑法中无存在空间。英国、美国、德国、法国等国多认可公然窃取的存在,是因为其刑法中没有将抢夺行为作为独立犯罪类型规定。未使用暴力的公然夺取行为被归入盗窃罪的范畴,使用暴力的抢夺行为被纳入抢劫罪名下。我国刑法中存在抢夺罪的规定,公然夺取行为可以通过抢夺罪规制,公然窃取不存在现实需要的空间。
第二,从刑法解释学来看,公开窃取逾越了刑法解释的边界。刑法解释应当文理解释优先,只有文理解释的结论明显不合理或产生多种结论时,才进行论理解释。“盗窃”的文义为“用不合法的手段秘密地取得”,公开窃取的观点与盗窃的本义不符。
第三,从司法实践来看,盗窃罪和抢夺罪区分的关键在于盗窃罪是秘密取得,抢夺罪是公然夺取。秘密性作为盗窃罪的必备要件,存在两个认定标准:一是客观标准,即行为客观上具有不为他人发觉的可能性,这主要针对被害人而言。行为人采取被害人难以发觉的方式取得财物即秘密窃取,而无论周围人能否发觉。二是主观标准,行为人主观上具有不为他人发觉的意思,即自认为是秘密进行的。即使实际上被害人已经发觉,只要客观上同时存在被害人难以发觉的可能性,行为仍然不丧失秘密性。
本案中,甲某在加油站为卡车加油后,为逃避支付油费,多次乘被害单位员工不备驾车驶离,该行为在主客观上均不是秘密进行,能够为被害单位员工即刻发现,故不能被认定为盗窃罪。
二、“加霸王油”的行为不构成诈骗罪。诈骗罪的行为过程包括:行为人虚构事实或者隐瞒真相→被害人陷于错误认识→被害人基于认识错误处分财物→行为人取得财物。有观点认为,本案中甲某虚构了付钱意思的事实或者说是隐瞒了不想付油钱的真相,使被害单位的员工陷入错误认识,将油交付被告人,被告人占有被害单位财物后逃离,其行为构成诈骗罪。笔者认为,此种意见不能成立。
第一,行为人不存在虚构事实或者隐瞒真相的行为。行为人加油但不想付钱的意思是一种主观意识状态,认为这属于事实或真相的观点有失偏颇。事实是指事情的真实情况,真相是指事物的真实面貌,它们都是事情或事物的客观存在状态。甲某加油但不想付钱的意思是一种主观意识活动,不属于事实或真相。
第二,被害单位的员工未基于错误认识而处分财物。诈骗罪和其他侵财犯罪的区分标准是“受骗人是否基于认识错误处分(交付)财产”,“交给行为不能与交付(处分)行为混为一谈”,“交出并不等于失控”。本案中,被害单位员工将油加入被告人的油箱,并非基于认识错误而交付财物,只是交给财物。从主观上看,被害人没有放弃财物的意思表示；从客观上看,如果行为人不支付对价,被害人可以随时追索并恢复对财物的直接控制,其并未丧失对财物的控制和支配力。
第三,被告人并未取得财物。刑法中的取得并不完全等同于民法中的占有。根据民法上的观念,加油后被告人已经占有该财物,但从行使效力上看,被告人并未取得对该财物占有的绝对性和排他性。在行为人支付对价之前,被害单位仍然保持着对该财物的控制,因此不能认为行为人已经取得了财物。
本案中,甲某在加油站加油后,为逃避支付油费,多次乘被害单位财物管理人不备驾车驶离加油站的行为不符合诈骗罪的行为特征,不构成诈骗罪。
三、“加霸王油”的行为构成抢夺罪。抢夺罪是指乘人不备、公然夺取公私财物的行为。公然夺取,是指行为人当着公私财物所有人、管理人或者其他人的面,乘人不防备,将公私财物据为己有或者给第三人所有；也有的采取可以使被害人立即发现的方式,公然把财物抢走,但不使用暴力或者以暴力相威胁。甲某当着被害单位财物管理人的面,乘人不防备驾车逃跑,并将被害单位的财物据为己有,其间并未使用暴力或者以暴力相威胁,完全符合公然夺取的特征,应以抢夺罪追究其刑事责任。
但是,在加油站工作人员抓住驾驶室门或座椅阻拦时,甲某继续加速行驶以迫使工作人员放手,甚至导致工作人员倒地受伤,此时甲某的行为性质发生了转化。根据刑法规定,犯盗窃、诈骗、抢夺罪,为窝藏赃物、抗拒抓捕或者毁灭罪证而当场使用暴力或者以暴力相威胁的,依照抢劫罪定罪处罚。甲某犯抢夺罪,为抗拒抓捕而当场使用暴力的两节犯罪行为,应当依抢劫罪定罪处罚。
MERCHANT SHIPPING (LIABILITY AND COMPENSATION FOR OIL POLLUTION) ORDINANCE ——附加英文版
Hong Kong
MERCHANT SHIPPING (LIABILITY AND COMPENSATION FOR OIL POLLUTION) ORDINANCE
(CHAPTER 414)
ARRANGEMENT OF SECTIONS
ion
I PRELIMINARY
hort title
nterpretation
ertificate as to parties to Conventions
alculation of tonnage
II LIABILITY FOR OIL POLLUTION AND COMPULSORY INSURANCE
nterpretation of Part II
iability for oil pollution
xceptions from liability under section 6
estriction of liability for oil pollution
imitation of liability under section 6
Limitation actions
Restriction on enforcement of claims after establishment of
limitation
fund
Concurrent liabilities of owners and others
Establishment of limitation fund outside Hong Kong
Extinguishment of claims under Part II
Compulsory insurance against liability for oil pollution
Issue of certificate by Director
Rights of third parties against insurers
Jurisdiction of Hong Kong courts and registration of foreign
judgments
Warships, etc.
Liability for cost of preventive measures where section 6 does
not
apply
Saving for recourse actions
III THE INTERNATIONAL OIL POLLUTION COMPENSATION FUND
Interpretation of Part III
Contributions to the Fund
Power to obtain information
Liability of the Fund for pollution damage
Indemnification of ship owner where ship registered in Fund
Convention
country
Effect of judgments
Extinguishment of claims under Part III
Subrogation and rights of recourse
IV MISCELLANEOUS
Offences by bodies corporate
Fees
Amendments, Savings and Repeals
dule 1. Overall limit on liability of Fund
dule 2. (Omitted)
rdinance to provide for compensation for pollution caused
by the
harge or escape of oil from oil-carrying ships and for the
liability
hipowners; for compulsory insurance in respect of such liability;
for
ributions by oil importers and others to the International
Fund for
ensation for Oil Pollution Damage; for the liability of the
Fund in
ain circumstances for such pollution; for the
indemnification of
owners by the Fund; and for incidental or related matters.
January 1991] L. N. 13 of 1991
PART I Preliminary
hort title
Ordinance may be cited as the Merchant Shipping
(Liability and
ensation for Oil Pollution) Ordinance.
nterpretation
In this Ordinance, unless the context otherwise requires--
t" includes expenses;
ntry" includes any territory;
rt" means the High Court or a judge thereof;
age" includes loss;
ector" means the Director of Marine;
d Convention" means the International Convention on the
establishment
n International Fund for Compensation for Oil Pollution Damage
opened
signature in Brussels on 18 December 1971;
g Kong ship" means a ship registered in Hong Kong;
bility Convention" means the International Convention
on Civil
ility for Oil Pollution Damage opened for signature in Brussels
on 29
mber 1969;
er", in relation to a ship, means the person or persons registered
as
owner of the ship or, in the absence of registration, the
person or
ons owning the ship, except that in relation to a ship owned
by a
e which is operated by a person registered as the ship's operator,
it
s the person registered as its operator; (Amended 74 of 1990 s.
104
lution damage" means damage caused outside a ship carrying
oil by
amination resulting from the discharge or escape of oil from the
ship,
ever the discharge or escape may occur, and includes the
cost of
entive measures and damage caused by preventive measures;
ventive measures" means any reasonable measures taken by any
person
r a discharge or escape of oil from a ship to prevent or
reduce
ution damage;
p" means any sea-going vessel or seaborne craft of
any type
soever, carrying oil in bulk as cargo;
cial drawing rights" means units of account used by the
International
tary Fund and known as special drawing rights;
minal installation" means any site for the storage of oil in
bulk
h is capable of receiving oil from waterborne
transportation,
uding any facility situated offshore and linked to any such site.
For the purposes of this Ordinance, where more than one
discharge or
pe results from the same occurrence or from a series of
occurrences
ng the same origin, they shall be treated as one; but any
measures
n after the first of them shall be deemed to have been taken after
the
harge or escape.
References in this Ordinance to the area of any country include
the
itorial sea of that country.
ertificate as to parties to Conventions
rtificate signed by the Governor and certifying that a State
specified
he certificate--
is a party to the Liability Convention in respect of a
country
ified in the certificate; or
is a party to the Fund Convention in respect of a country specified
in
certificate,
l be conclusive evidence of the matters contained therein and
shall in
legal proceedings under this Ordinance to which it
relates be
ssible on its production and without further proof.
alculation of tonnage
the purposes of this Ordinance, the tonnage of a ship
shall be
rtained as follows--
where the register tonnage of the ship has been or can be
ascertained
ccordance with the Merchant Shipping (Tonnage) Regulations
(App. I,
, the ship's tonnage shall be the register tonnage of the ship
as so
rtained but without making any deduction required by those
regulations
ny tonnage allowance for propelling machinery space;
where the ship is of a class or description with respect to which
no
ision is for the time being made by the Merchant Shipping
(Tonnage)
lations, the tonnage of the ship shall be taken to be 40%
of the
ht (expressed in tons of 2 240 lbs) of oil which the ship is
capable
arrying;
where the tonnage of the ship can not be ascertained in
accordance
either paragraph (a) or (b), the Director shall, if so directed
by
court in any proceedings, certify what, on the evidence
specified in
direction, would in his opinion be the tonnage of the
ship as
rtained in accordance with paragraph (a) or (b), as the case may
be,
he ship could be duly measured for the purpose; and the tonnage
stated
is certificate shall be taken to be the tonnage of the ship.
PART II LIABILITY FOR OIL POLLUTION AND COMPULSORY INSURANCE
nterpretation of Part II
In this Part--
bility Convention country" means a country in respect of
which the
ility Convention is in force; and
bility Convention State" means a State which is a party
to the
ility Convention.
In relation to any pollution damage resulting from the
discharge or
pe of any oil carried in a ship references in this Part to the
owner
he ship are references to the owner at the time of the
occurrence
lting in the discharge or escape or, if there is more than one
such
rrence, at the time of the first of such occurrences.
References in this Part to the Merchant Shipping Act 1979 (1979
c. 39
.) are references to that Act as it applies in Hong Kong.
iability for oil pollution
Where, as a result of any occurrence taking place while a
ship is
ying a cargo of persistent oil in bulk, any persistent oil carried
by
ship (whether as part of the cargo or otherwise) is
discharged or
pes from the ship, the owner of the ship shall be liable, except
as
rwise provided by this Ordinance, for any pollution damage
caused in
Kong.
Where--
a liability arises under subsection (1); and
the discharge or escape by reason of which the liability arose
also
lts in pollution damage in the area of a Liability Convention
country
r than Hong Kong, the owner of the ship concerned shall also be
liable
r subsection (1) for that damage as if the damage had occurred
in Hong
.
Where persistent oil is discharged or escapes from 2 or more
ships
-
a liability is incurred under this section by the owner of
each of
; but
the pollution damage for which each of the owners would, apart
from
subsection, be liable cannot reasonably be separated from that
for
h the other or others would be liable,
of the owners shall be liable, jointly with the other or others,
for
whole of that damage for which the owners together would be
liable
r this section.
Section 21 of the Law Amendment and Reform (Consolidation)
Ordinance
. 23) shall apply in relation to any pollution damage for
which a
on is liable under this section, but which is not due to his fault,
as
t were due to his fault.
xceptions from liability under section 6
owner of a ship from which persistent oil has been discharged or
has
ped shall not incur any liability under section 6 if he proves
that
discharge or escape--
resulted from an act of war, hostilities, civil war,
insurrection or
xceptional, inevitable and irresistible natural phenomenon; or
was due wholly to anything done or left undone by another person,
not
g a servant or agent of the owner, with intent to do damage; or
was due wholly to the negligence or wrongful act of a
government or
r authority in exercising its function of maintaining lights or
other
gational aids for the maintenance of which it was responsible.
estriction of liability for oil pollution
e, as a result of any occurrence taking place while a ship is
carrying
rgo of persistent oil in bulk, any persistent oil carried by the
ship
ther as part of the cargo or otherwise) is discharged or escapes
then,
her or not the owner incurs a liability under section 6,--
he shall not be liable otherwise than under that section for any
such
ution damage as is mentioned therein; and
no servant or agent of the owner and no person performing
salvage
ations with the agreement of the owner shall be liable for any
such
ge.
imitation of liability under section 6
e the owner of a ship incurs a liability under section 6 by reason
of
scharge or escape which occurred without his actual fault or
privity,
ay limit that liability in accordance with this Ordinance, and
if he
so his liability (that is to say, the aggregate of his
liabilities
r section 6 resulting from the discharge or escape) shall not
exceed--
133 special drawing rights for each ton of the ship's tonnage;
or
14,000,000 special drawing rights, whichever amount is the less.
Limitation actions
Where the owner of a ship has or is alleged to have
incurred a
ility under section 6 he may apply to the court in accordance
with
s of court for the limitation of that liability to
an amount
rmined in accordance with section 9.
If on such an application the court finds that the
applicant has
rred such a liability and is entitled to limit it, the court
shall
rmine the limit of the liability and direct payment into court
of the
nt of that limit, and shall then
determine the amounts that would, apart from the limit, be
due in
ect of the liability to the several persons making claims
in the
eedings under this section; and
direct the distribution of the amount paid into court (or, as the
case
be, so much of it as does not exceed the liability) among
those
ons in proportion to their claims subject to the following
provisions
his section.
A payment into court of the amount of a limit determined under
this
ion shall be made in Hong Kong dollars and--
for the purposes of converting such an amount from special
drawing
ts into Hong Kong dollars the Monetary Authority may certify, in
Hong
dollars, the respective amounts which are to be taken as
equivalent
a particular day to the sums expressed in special drawing
rights in
ion 9;
a certificate signed by or on behalf of the Monetary Authority
under
graph (a) shall be conclusive evidence of the matters
contained
ein and shall in legal proceedings under this Ordinance to
which it
tes be admissible on its production and without further proof.
nded 82 of 1992 s. 44)
No claim shall be made in proceedings under this section except
within
time as the court may direct or such further time as the court
may
w.
Where any sum has been paid in or towards satisfaction of any claim
in
ect of the pollution damage to which the liability referred
to in
ection (1) extends--
by the owner or the person referred to in section 17 as "the
insurer";
by a person who has or is alleged to have incurred a
liability,
rwise than under section 6, for that damage and who is
entitled to
t his liability in connection with the ship by virtue of the
Merchant
ping Act 1979 (1979 c. 39 U. K.), the person who paid the sum
shall,
he extent of that sum, be in the same position with respect to
any
ribution made in proceedings under this section as the person to
whom
as paid would, apart from this subsection, have been,
and the
ribution shall be made accordingly.
Where the owner who incurred the liability referred to in
subsection
has voluntarily made any reasonable sacrifice or taken
any other
onable measures to prevent or reduce pollution damage to
which the
ility extends or might have extended he shall be in the same
position
respect to any distribution made in proceedings under this
section as
e had established a claim in respect of the liability for an
amount
l to the cost of the sacrifice or other measures, and the
distribution
l be made accordingly.
The court may, if it thinks fit, postpone the distribution of
such
of the amount to be distributed as it deems appropriate having
regard
ny claims that may later be established before a court outside
Hong
.
Restriction on enforcement of claims after establishment of
limitation
e the court has found that a person who has incurred a liability
under
ion 6 is entitled to limit that liability to any amount and
he has
into court a sum not less than that amount--
the court shall order the release of any ship or other
property
sted in connection with a claim in respect of that liability or
any
rity given to prevent or obtain release from such an arrest; and
no judgment or decree for any such claim shall be enforced, except
so
as it is for costs,
sum paid into court, or such part thereof as corresponds to the
claim,
be actually available to the claimant or would have been available
to
if the proper steps in the proceedings under section 10
had been
n.
Concurrent liabilities of owners and others
e, as a result of any discharge or escape of persistent oil
from a
, he owner of the ship incurs a liability under section 6 and
any
r person incurs a liability, otherwise than under that section,
for
such pollution damage as is mentioned in subsection (1)
of that
ion, then, if--
the owner has been found, in proceedings under section 10,
to be
tled to limit his liability to any amount and has paid into
court a
not less than that amount; and
the other person is entitled to limit his liability in connection
with
ship by virtue of the Merchant Shipping Act 1979 (1979 c. 39 U.
K.),
roceedings shall be taken against the other person in respect of
his
ility, and if any such proceedings were commenced before the
owner
the sum into court, no further steps shall be taken
in the
eedings except in relation to costs.
Establishment of limitation fund outside Hong Kong
e the events resulting in the liability of any person under
section 6
result in a corresponding liability under the law of a
Liability
ention country other than Hong Kong, sections 11 and 12 shall
apply as
he references to sections 6 and 10 included references
to the
esponding provisions of that law and the references to sums paid
into
t included references to any sums secured under those
provisions in
ect of the liability.
Extinguishment of claims under Part II
ction to enforce a claim in respect of a liability incurred
under
ion 6 shall be brought in any court in Hong Kong unless the action
is
enced not later than 3 years after the claim arose and not later
than
ars after the occurrence or, if there is more than
one such
rrence, the first of such occurrences resulting in the
discharge or
pe by reason of which the liability was incurred.
Compulsory insurance against liability for oil pollution
Subject to section 19, subsection (2) applies to any ship carrying
in
a cargo of more than 2,000 tons of persistent oil as
defined in
lations made under this section.
A ship to which this subsection applies shall not enter or leave--
the waters of Hong Kong; or
if the ship is a Hong Kong ship, a port in any other country
or a
inal installation in the territorial sea of any other country,
unless
e is in force a certificate complying with subsection
(4) and
ifying that there is in force in respect of the ship a
contract of
rance or other security satisfying the requirements of Article
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