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Shanghai Jiading District People's Procuratorate v. Wei Peiming, et al (Case of robbery)
上海市嘉定区人民检察院诉魏培明等人抢劫案
【法宝引证码】
  • Type of Dispute: Criminal-->Property Infringement
  • Legal document: Ruling
  • Judgment date: 10-15-2003
  • Procedural status: Retrial
  • Source: SPC Gazette,Issue 4,2005

Shanghai Jiading District People’s Procuratorate v. Wei Peiming, et al (Case of robbery)
(Case of robbery)
上海市嘉定区人民检察院诉魏培明等人抢劫案

Shanghai Jiading District People's Procuratorate v. Wei Peiming, et al

 

上海市嘉定区人民检察院诉魏培明等人抢劫案

(Case of robbery) 【裁判摘要】
[Judgment Abstract] 根据刑法二百六十三条和《最高人民法院关于审理抢劫案件具体应用法律若干问题的解释》第一条第一款的规定,被告人以假借购物为由,进入他人经营和生活区域缺乏明显隔离的商店抢劫财物的行为,虽构成抢劫罪,但不构成入户抢劫的情节。
Under Article 263 of the Criminal Law andParagraph 1 of Article 1 of the Interpretations of the Supreme People's Courton Several Issues concerning the Specific Application of Laws in the Trial ofCriminal Cases involving Robbery, where the defendant, disguised for shopping, entersinto a shop which has no distinctive segregation between business area andliving area, and robs the shop, he commits the crime of robbery but without thefactor of breaking-in. 
BASIC FACTS 公诉机关:上海市嘉定区人民检察院。
Public prosecutor: Shanghai Jiading District People's Procuratorate 被告人:魏培明,男,32岁,河南省杞县邢口乡农民。2002年4月2日被逮捕。
Defendant: Wei Peiming, male, 32, farmer of Xingkou Township, Qixian County, Henan Province, arrested on April 2, 2002 被告人:岳向海,男,28岁,河南省睢县西陵镇农民。2002年4月2日被逮捕。
Defendant: Yue Xianghai, male, 28, farmer of Xiling Town, Suixian County, Henan Province, arrested on April 2, 2002 被告人:岳雷,男,23岁,河南省睢县西陵镇农民。2002年4月2日被逮捕。
Defendant: Yue Lei, male, 23, farmer of Xiling Town, Suixian County, Henan Province, arrested on April 2, 2002 
PROCEDURAL POSTURE 上海市嘉定区人民检察院以被告人魏培明等人犯抢劫罪,向上海市嘉定区人民法院提起公诉。
Shanghai Jiading District People's Procuratorate brought a public prosecution against Wei Peiming, et al and charged them with the crime of robbery in Shanghai Jiading District People's Court. 起诉书指控:2002年3月19日晚,被告人魏培明和岳雷、岳向海3人持仿真玩具手枪和三棱刮刀等凶器,在上海市嘉定区马陆镇石岗村的芳芳商店内对在此经营和居住的陈云飞夫妇实施了抢劫,获取现金1350余元。后魏培明、岳向海被接警赶到的民警当场抓获,岳雷虽当时逃离现场,但于次日凌晨被抓获归案。起诉书认为,根据《中华人民共和国刑法》(以下简称刑法)第二百六十三条的规定,魏培明等人的行为已构成了入户抢劫财物,应依法予以惩处。
The indictment charges that on March 19, 2003, defendants Wei Peiming, Yue Lei and Yue Xianghai, holding an emulation pistol, a three-edge knife and other weapons, robbed Chen Yunfei and his wife of 1350-odd yuan in cash in Fangfang Shop located at Shigang Cun, Malu Town, Jiading District, Shanghai. Later Wei Peiming and Yue Xianghai were arrested by the police who rushed to the scene at the report of robbery. Yue Lei was arrested before the daybreak of the morrow though he had escaped from the scene after the commission of the offence. The indictment alleges that, in accordance with Article 263 of the Criminal Law of the People's Republic of China, the acts of Wei Peiming, et al, constituted the crime of intruding into another person's abode for robbing property and that they should be punished. 被告人魏培明对公诉机关的指控无异议。
Wei Peiming raised no objection to the indictment of the public prosecution organ. 被告人岳向海及辩护人均对公诉机关的指控无异议;但岳向海的辩护人认为,岳向海在共同犯罪中的作用要小于其他被告人,建议量刑时予以区别。
Neither Yue Xianghai nor his defender raised any objection to the indictment of the public prosecution organ. But the defender of Yue Xianhai asserted that Yue Xianghai played a lesser role in the joint offence than the other defendants, and proposed a difference in sentencing. 被告人岳雷及辩护人均对公诉机关的指控无异议;但岳雷的辩护人认为,本案被告人抢劫的对象是商店,故不能认定为入户抢劫;此外,岳雷在共同犯罪中作用较小,建议对其从轻处罚。
Neither Yue Lei nor his defender demurred at the indictment of the public prosecution organ. But the defendant of Yue Lei contended that the target which the defendants of this case robbed was a shop, so their offence could not be convicted of intruding into another person's abode for robbery; and moreover, Yue Lei played a lesser role in the joint offence. He suggested that Yue Lei should be a lighter penalty. 上海市嘉定区人民法院经审理查明:
Upon hearing the case, Shanghai Jiading District People's Court found that: 2002年3月19日,被告人魏培明、岳雷、岳向海3人预谋对位于上海市嘉定区马陆镇石岗村的芳芳商店进行抢劫,并为此准备了仿真玩具手枪、封箱胶带、尼龙绳和三棱刮刀等犯罪工具。当晚11时30分许,魏培明3人乘店内无顾客之机,携带犯罪工具进入商店后,用仿真玩具手枪、三棱刮刀顶住店主陈云飞头部及胸部,对其进行威胁,并强行将商店卷帘门关上,用透明封箱带捆住陈云飞,封住其嘴巴和眼睛,随即魏培明从该店营业箱内劫得现金450元。岳向海持三棱刮刀冲人商店的内侧卧室,对睡在床上的陈云飞妻子黄益芳进行威胁,逼其交出钱款,并在陈云飞的衣服口袋内及衣橱顶部劫得现金人民币900余元。这时,民警接报警后赶到,当场将魏培明、岳向海2人抓获,岳雷逃离现场后于次日凌晨被抓获归案。
On March 19, 2003 the defendants Wei Peiming, Yue Lei and Yue Xianghai conspired to rob Fangfang Shop located at Shigang Cun, Malu Town, Jiading District, Shanghai and prepared an emulation pistol, adhesive tape, a nylon rope and a three-edge knife for committing the crime. At about 11: 30 of the same evening, seeing no customer in the shop, Wei Peiming and other 2 persons entered into the shop, carrying the aforesaid tools. They pressed the emulation pistol and the three-edge knife against the head and chest of Chen Yunfei, the shop owner, menacing him, forcibly closed the roller door, tied him up and covered his mouth and eyes with adhesive tape, then Wei Peiming took 450 yuan in cash from the business trunk of this shop. Holding a three-edge knife, Yue Xianghai intruded into the inner bedroom of the shop, menaced Huang Yifang, Chen Yunfei's wife, who was lying on the bed, demanded money and took 900-odd yuan in cash from the pockets of Chen Yunfei's clothes and from the top of the cupboard. At that moment, the police arrived at the report of the robbery, they caught Wei Peiming and Yue Xianghai at the scene and captured Yue Lei before the daybreak on the morrow though he had escaped from the scene. 上海市嘉定区人民法院经审理认为:
Upon hearing the case, Shanghai Jiading District People's Court held that: 被告人魏培明、岳向海、岳雷以非法占有为目的,采用暴力手段抢劫公民财物的事实清楚,证据确实、充分,指控的罪名成立,魏培明3人抢劫对象为尚在营业中的商店,不属于法律规定的“户”之范畴,故岳雷的辩护人关于各被告人的行为不应认定为入户抢劫的辩护意见予以采纳。本案是一起有预谋有分工的共同犯罪,暴力程度相对较大,社会危害严重,故在量刑时酌情从重处罚;但魏培明3人归案后认罪态度尚好,量刑时亦应一并予以考虑。
The fact that Wei Peiming, Yue Xianghai and Yue Lei, for the purpose of illegal seizure, robbed other people of their property by violence is clear and is supported by exact and adequate proofs, so the crime charged against them stands. Considering that the target which Wei Peiming and other two persons robbed was a shop in operation and that the shop does not fall into the category of “abode” as provided in law, that Yue Lei's defender asserted that the acts committed by the defendants should not be deemed as an intrusion into another person's abode for robbery should be adopted. This case is a organized joint offence, it involved serious violence and severely harmed the society, so the offenders should be given heavier punishments. However, they showed repentance after they were arrested, which should be taken into consideration in sentencing as well. 综上,上海市嘉定区人民法院依照刑法第第二百六十三条、第五十六条第一款、第五十五条第一款、第五十三条、第六十四条、第二十五条第一款的规定,于2002年 7月17日判决:
To sum up, Shanghai Jiading District People's Court ruled on July 17, 2002 in accordance with Article 263, Article 56 (1), Article 55 (1), Article 53, Article 64 and Article 25 (1) that: 被告人魏培明犯抢劫罪,判处有期徒刑八年,剥夺政治权利二年,并处罚金人民币2000元;
Defendant Wei Peiming, who committed the crime of robbery, shall be sentenced to a fixed term of imprisonment of 8 years, be deprived of political rights for 2 years and be fined 2, 000 yuan; 被告人岳向海犯抢劫罪,判处有期徒刑八年,剥夺政治权利二年,并处罚金人民币2000元;
Defendant Yue Xianghai, who committed the crime of robbery, shall be sentenced to a fixed term of imprisonment of 8 years, be deprived of political rights for 2 years and be fined 2, 000 yuan; 被告人岳雷犯抢劫罪,判处有期徒刑八年,剥夺政治权利二年,并处罚金人民币 2000元;
Defendant Yue Lei, who committed the crime of robbery, shall be sentenced to a fixed term of imprisonment of 8 years, be deprived of political rights for 2 years and be fined 2, 000 yuan; 判决后,魏培明3人均服判,没有提出上诉。
After the judgment was made, Wei Peiming and other two offenders accepted it. None of them appealed. 上海市嘉定区人民检察院以一审判决没有按入户抢劫认定有误,对各被告人应处以十年以上有期徒刑为由提出抗诉,上海市第二中级人民法院依法受理了本案。
Shanghai Jiading District People's Procuratorate lodged a counter-appeal on the grounds that it was wrong in the judgment of first instance not to convict the offenders of intruding into another person's abode for robbery and that each defendant should be sentenced to a fixed term of imprisonment of at least 10 years. Shanghai No. 2 Intermediary People's Court accepted the counter-appeal in accordance with the law. 上海市第二中级人民法院经审理查明,一审法院认定的案件事实无误。
Upon trial of this case, Shanghai No. 2 Intermediary People's Court affirmed the findings made by the court of first instance. 本案的争议焦点为:被告人以假借购物为由,进入他人经营和生活区域缺乏明显隔离的店铺抢劫财物的行为,是否构成入户抢劫?
The disputes involved in this case focus on whether or not the defendants, under the excuse of going shopping for the purpose of robbing of property by intruding into other persons' shop, in which the business operation area was not clearly separated from the living area, constituted the offence of intruding into another person's abode for robbery. 上海市第二中级人民法院认为:
Shanghai No. 2 Intermediary People's Court held that: 从本案魏培明等人的犯罪动机和目的看,抢劫行为是针对被害人经营的店铺的。该店铺地处临街,采取的是随时服务的经营方式,魏培明等人就是以购物为由进入店铺的。且被害人的店铺中用于生活的区域处于非封闭状态,生活设施都是临时性的,同时还堆放有部分货物,与用于经营的区域缺乏明显的隔离,不具备刑法中“户”的主要特征,不能认定为“入户抢劫”,故对检察机关的抗诉意见不予支持。
In terms of the criminal motive and purpose of the Wei Peiming et al, the target of robbery was a shop run by the victim. This shop faced a street and provided services at any time. Wei Peiming, et al, entered into the shop under the excuse of going shopping. Furthermore, the victim' living area within the shop was at a semi-closed state, the living facilities were temporary, and some goods were stacked there in the meantime. The living area was not obviously separated from the business operation area, it did not conform to the main characteristics of “abode” as provided for in the Criminal Law, so the offenders shall not be convicted of intruding into another person's abode for robbery and the counter-appeal of the prosecutorial organ should not be supported. 上海市第二中级人民法院依照刑事诉讼法第一百八十九条第(一)项和《最高人民法院关于审理抢劫案件具体应用法律若干问题的解释》第一条的规定,于2002年 10月28日裁定:
In accordance with Article 189 (1) of the Criminal Procedural Law and the Interpretations of the Supreme People's Court on Several Issues Concerning the Application of Law in Cases of Robbery, Shanghai No. Intermediary People's Court ruled on December 28, 2002: 驳回抗诉,维持原判。
The counter-appeal shall be dismissed and the original judgment shall be affirmed. 二审裁定发生法律效力后,上海市人民检察院以上海市嘉定区人民法院和上海市第二中级人民法院的判决、裁定确有错误为由,于2003年4月4日再次以审判监督程序向上海市高级人民法院提出抗诉。上海市人民检察院的主要抗诉理由是:(1)魏培明3人在经“踩点”确认被害人夫妇晚间宿于店内后,选择深夜作案,且在被害人停止营业之际闯入行劫,表明主观上具有“入户抢劫”的故意,其抢劫行为的指向应认定为“户”。(2)被害人拉下卷帘门的行为表明,此时的芳芳商店已从公开的营业场所转为与外界相对隔离的家庭生活场所,且客观上被害人的妻女已经上床并入睡,故魏培明3人所侵犯的场所已完全具有“户”的生活功能和特征。(3)魏培明3人找借口趁被害人不备而闯入店内,具有非法侵入性,在侵入后,又强行拉下卷帘门,使之与外界隔离的情况下,对被害人使用暴力进行抢劫,而且还进入内侧卧室劫得 900余元,其行为不仅侵犯了公民个人的人身安全,而且还危及到公民的家庭财产和安全,其客观行为和实际危害均符合“入户抢劫”的特征。
After the ruling of second instance came into effect, Shanghai People's Procuratorate lodged a new counter-appeal in Shanghai Higher People's Court under the judicial supervision procedure on April 4, 2003 on the grounds that it was erroneous indeed in the judgment of Shanghai Jiading District People's Court and in the ruling of Shanghai No. 2 People's Court. The main reasons for the counter-appeal of Shanghai People's Procuratorate were that (1) after Wei Peiming and other 2 persons confirmed that the husband and wife, the victims, lodged for the night in the shop, they chose to commit the crime late at night and intruded into the shop for robbery when the victims were to stop business, this shows their subjective intent of “intruding into another person's abode for robbery” and that the target of their robbery should be “abode”; (2) that the act that the victim put down the roller door shows that at that moment Fangfang Shop had already shifted from a public business place to the living place of a family which was relatively isolated from the outside since the wife and daughter were asleep, the place into which Wei Peiming, et al, intruded had already had the living functions and features of an “abode”; and (3) that Wei Peiming, et al, intruded into the shop under an excuse and by seizing the opportunity that the victims was not aware of their conspiracy, which was of the nature of illegal intrusion. After their intrusion, they forced down the roller door so as to make the victims isolated from the outside and rob them by violence. In addition, they robbed of 900-odd yuan by entering into the inner bedroom, their acts not only damaged the personal safety of citizens, but also endangered the family property and safety of other people, their objective acts and practical danger all conform to the features of “intruding into another person's abode for robbery”. 
JUDGMENT'S REASONING 上海市高级人民法院经审理认为:
Upon hearing this case, Shanghai Higher People's Court held that: 芳芳商店系被害人公开营业的商店,该店有工商管理机关核发的营业执照,故不应认定其为居民的住宅,而是认定其为营业场所。该店由连成一体的三间店面房组成,内部各房间之间没有明确的隔离,其中两间分别用于放置货架或作为门市,另一间内有一张床和一具液化气灶具,同时也堆放着数袋大米、货架和冰柜,以上情况说明店内的生活区域与营业场所没有明确的分隔,生活功能和营业功能的区分不明显。刑法“入户抢劫”中的“户”,是指公民的私人住宅,即公民以居住、生活为目的,与外界相对隔离的场所。《最高人民法院关于审理抢劫案件具体应用法律若干问题的解释》规定:“户为他人生活的与外界相对隔离的住所,包括封闭的院落、牧民的帐篷、渔民作为家庭生活场所的渔船、为生活租用的房屋等。”根据该解释,作为刑法意义上的“户”,应当是以生活为目的或主要以生活为目的设立的场所,而其他为生产、经营、学习设立的场所,则不宜认定为“户”。芳芳商店是以营业为目的开设的公开营业场所,虽部分区域兼有生活功能,但不具有居民私人住宅相对封闭性的特征。本案事实表明,魏培明3人在实施抢劫时,芳芳商店还在营业之中。魏培明等人是以抢商店的营业款为目的而实施犯罪,犯罪意图和指向明确。被害人的卧室仍然是商店的一部分,与商店的经营区域不处于封闭的状态,故不能以魏培明等人在此亦实施了抢劫就认定构成入户抢劫。根据本案事实,魏培明、岳向海、岳雷3人虽共谋抢劫,并共同以暴力威胁为手段实施了抢劫财物的行为,均已构成抢劫罪,但尚不能认定魏培明、岳向海、岳雷3人的具体行为构成了“入户抢劫”。
Fangfang Shop is a shop publicly run by the victim, it has a business license issued by the administrative organ for industry and commerce, so it should be determined as a business place rather than a abode. This shop consists of 3 connecting storefront rooms, there is no obvious segregation among them, in one of which goods shelves are placed, another one served as a salesroom, and in the last room there is one bed and cooking utensils using liquefied petroleum gas, a stack of several bags of rice, goods shelves and a refrigerator. The features described above indicates that there is no obvious segregation between the living area and the business area within the shop, failing to clearly distinguish its function of living area from its function of business operation. The “abode” in the term “intruding into another person's abode” as described in the Criminal Law refers to the private residential house of a citizen, namely a place in which the citizen resides and lives and which is relatively separated from the outside. The Interpretation of the Supreme People's Court on the Application of Law in the Trial of Robbery Cases provides that “an abode is a dwelling place which another person lives and which is relatively separated from the outside, including close courtyards, tents of herdsmen, as well as fishing vessels for family living of fishermen, and houses rent by fishermen for the purpose of living.” Under the said Interpretation, the “abode” in the criminal law should be a place established for the purpose of living or mainly for the purpose of living. It is improper to determine a place established for production, business operation or study as an “abode”. Fangfang Shop is a public business place established for the purpose of business operations. Though part of the area concurrently serves the function of a living area, it is not characterized by the relative closeness as a private abode of a resident. The fact of this case indicates that when Wei Peiming, et al, committed the robbery, Fangfang Shop was still under business. Wei Peiming, et al, committed the crime in order to rob the victims of their business income in the shop. The criminals' intent and direction are clear. The bedroom of the victim is still a part of the shop, it and the business area of the shop are not in a close state, so it should not infer that the robbery committed herein by Wei Peiming, et al, constitutes “an intrusion into another person's abode for robbery”. In view of the facts of this case, Wei Peiming, Yue Xianghai and Yue Lei conspired and committed a robbery of property by violence and threat, their acts have already constituted the crime of robbery, but it cannot be found that their concrete acts constitute “an intrusion into another person's abode for robbery”. 
JUDGMENT 综上,上海市高级人民法院依照《中华人民共和国刑事诉讼法》第二百零六条,最高人民法院《关于执行<中华人民共和国刑事诉讼法>若干问题的解释》第三百一十二条第一项规定,于2003年10月15日裁定:
For the reasons given above, Shanghai Higher People's Court ruled in accordance with Article 206 of the Criminal Procedure Law of the People's Republic of China and Article 312 (1) of the Interpretations of the Supreme People's Court on Several Issues Concerning the Implementation of Criminal Procedure Law of the People's Republic of China on October 15, 2003: 
1. The counter-appeal shall be dismissed. 一、驳回抗诉。
2. Criminal Ruling No. 511 [2002] of Shanghai No. 2 Intermediary People's Court and Criminal Judgment No. 180 [2002] of Shanghai Jiading District People's Court shall be affirmed. 二、维持上海市第二中级人民法院 (2002)沪二中刑终字第511号刑事裁定和上海市嘉定区人民法院(2002)嘉刑初字第 180号刑事判决。

 

     
     
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