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携带凶器盗窃的立法意旨在于保护法益,但立法者出于刑事政策的考量,以其行为危险性而设计为具备高效、便宜性格的抽象危险犯,虽然凸显了法益保护,却有忽视自由保障之嫌,并造成了诸多理论间的异常与牵强。就此将携带凶器设置为加重情节可以有效化解,坚持结果无价值论立场,兼具合理性与可行性。而在实然模式下仍应当以法益为核心,对携带凶器盗窃予以限制解释,节制抽象危险犯侵入公民自由空间的“危险”。
Although the legislative intent of carrying a weapon against theft is to protect the legal interests, the legislator, out of consideration of criminal policy, is designed to be an abstract dangerous criminal with an efficient and cheap character because of his behavioral danger. Although the protection of legal interests is highlighted, there is neglect of freedom protection Suspected, and caused a lot of abnormal and far-fetched theory. In this regard will be carrying a weapon set to aggravate the plot can be effectively resolved, adhere to the results of a no-value position, both reasonable and viable. In the real mode, however, the legal interests should still be the core to limit the explanation of the crime of carrying a lethal weapon, and to control the abstract dangerous criminals to infringe on the “danger” of the civil liberties.