盗窃罪中秘密窃取说之坚守——兼论对公开盗窃说的批驳

摘要

The traditional theory of criminal law in China insists on the theory of secret stealing,but the scholars who are represented by Professor Zhang Mingkai think that the crime of theft is becoming more and more complicated,and the secret stealing can not adapt to the development of social situation.So it should be argued that there is a lot of problems in the inherent logic of the criminal constituent elements that include the theft of the theory of public stealing as a way of theft,and that the academic and practical circles should remain the theory of secret stealing.%我国传统刑法理论坚持将盗窃罪的盗窃行为限于秘密盗窃,但以张明楷教授为代表的学者认为盗窃犯罪形态日益复杂化,秘密窃取说已不能适应社会形势的发展,遂提出公开盗窃亦能构成盗窃的观点.应当认为,公开盗窃说将公开盗窃视为盗窃行为的方式而纳入盗窃罪的犯罪构成要件行为内在逻辑上欠缺合理性且存在诸多问题,因此学界与实务界仍应坚守秘密窃取说.