明安华抢劫案法理问题研究摘　要抢劫案是高发刑事案件，是同时侵犯公民人身、财产法益的典型案件。为了更好地指导抢劫罪的审理，司法机关多次发布相关司法解释和司法文件，学术界对抢劫罪的研究也不断深入。本文欲以明安华抢劫案这一颇具疑难性和特殊性的案件为例，分析其中三个具有争议的法理问题。该案的争议焦点在于：第一，家庭共有财产能否成为抢劫罪的犯罪对象？本案应当定性为抢劫罪还是故意杀人罪？第二，“户中户”抢劫是否能适用入户抢劫这一加重情节？对本案的进入“父母之户”是否应当升格法定刑？第三，以了解案情为目的前往公安机关后如实供述的行为能否适用自首这一从宽处罚的法律规定？首先，关于家庭共有财产能否成为抢劫罪对象的问题，答案是肯定的。理由如下：（1）家庭共有财产属于民法上的共同共有财产，属于公私财产的范畴。共有人行使财产权利，应当遵守法律规定和共有人的约定。共有人破坏共同占有，企图建立新的占有，是符合抢劫罪以非法占有为目的的主观要求的。（2）虽然亲属间的权利侵害大多依靠民事途径维权，但抢劫行为严重损害被害人人身及财产利益的，民事维权途径却不能完全保护受害人的利益，需要刑法发挥二次保护功能，对该行为以抢劫罪定性，进行否定评价。（3）从关于盗窃案件的司法解释可知，偷盗自己家的财物和近亲属财物的，可以入罪。比较“亲亲相盗”和“亲亲相抢”，可以看出，后者侵害的对象具有二元双重性，社会危害性和可罚性更大，应当以抢劫罪论处。（4）2005年的“两抢”解释第7条对“近亲相抢”作出了开放性的规定，并未排除以抢劫罪论处的可能性。因此，对于符合抢劫罪的构成要件且情节严重的，应当按照严重脱逸社会相当性理论将其认定为抢劫罪。根据以上评定标准，家庭共有财产属于抢劫罪的对象，明安华的行为应按照抢劫罪定罪处罚。其次，关于 “户中户”抢劫和进入父母之户是否属于入户抢劫的问题，一审法院将其定性为“入户抢劫”，是不适当的。本文将“户中户”抢劫概括为外来人员实施的抢劫和一方同住人对另一方同住人的抢劫。在第一种情况下，不论外来人员在合租屋公共部分还是在单个租户户内实施抢劫，都成立“入户抢劫”。在第二种情况下，如果同住人没有家庭关系，成立入户抢劫。如果同住人有家庭关系，则不成立入户抢劫，原因如下：（1）入户人即户主，其入户行为因被害人承诺阻却违法性，属于合法入户行为；（2）户中房间供同住人共同生活，进出随意，不具备刑法所保护的“户”之场所性特征和功能性特征的要求；（3）行为人抢劫的故意是在与受害人同处一个大“户”后形成的，不符合抢劫的故意必须产生在入户前这一主观要求。因此，本案中明安华进入“父母之户”实施抢劫的行为不应被认定为入户抢劫。一审法院以“入户抢劫”评定其行为是不适当的。 最后，关于自首的认定问题，本文提出了四项评判依据：（1）接受国家的审查和裁判应被囊括在自首的两个成立要件的内涵之中，是自首成立“二要件说”的应有之义。（2）投案意愿的自动性要求。投案自动性的印证标准是：投案人明确告知司法机关其前往的目的是投案自首，交代罪行。（3）自动投案、如实供述自己罪行这两个要件应有连贯性。（4）在归案方式存在一定被动性的前提下，正确区分盘问下的自首和讯问后的坦白，把握自首与坦白之间的界限。所以，本案中明安华以了解案情为目的而作出的如实供述行为不成立自首，应认定为坦白。综上，明安华的上诉理由不成立。关键词：抢劫家庭共有财产， 户中户， 自首， 坦白

The legal analysis of Ming Anhua robberyABSTRACTRobbery is a highly happened incidence of criminal cases, is a typical and representative example of the infringement of property rights and interests of citizens. In order to hear the robbery cases more successfully and smoothly, the judiciary has issued relevant judicial interpretation and judicial document, the academic research of robbery is also going deeper and deeper. As a typical and difficult case, Ming Anhua robbery has been analyzed in this paper, so as to explain three complex legal issues in it. There are three controversial points in this case. Firstly, whether common property of family can become the object of robbery and whether the criminal offense in this case should be convicted as robbery or murder. Further more, robbery of housebreaking is an aggravating circumstance. But whether entering into a room inside a household such as the house of parents is such the case, is also contentious. Last but not least, whether one can be regarded as surrender and have his punishment mitigated or waived, when he goes to the police station for the purpose of knowing more about the case and turns over fast all the facts.Above all, the answer to the first question, is positive. As author I give in this paper the following 4 grounds for that. In the first place, common property of family belongs to the common property in civil law as well as public and private property. The owner of common property should comply with the law and agreement. When the owner of common property undermines the common possession and wants to create a new possession for his own interest, his behavior is in line with the subjective requirement of illegal possession. Secondly, although the infringements between relatives are often defended by civil activities, the civil activity may not fully protect the personal and property interest, when these interests are seriously undermined by a robbery. There is a need, that criminal law plays a secondary protective role. This offense should be valued negatively as robbery. Thirdly, according to the larceny judicial interpretation, one could be punished by criminal law because he steals the property of his own or his relatives. Compared with larceny, the harmfulness of robbery is more severe, because this offense harms double objects and should be viewed as robbery. Fourthly, according to the judicial interpretation of robbery in 2005, which is an open provision, it is possible that, the seize between relatives can be valued as robbery, when ones behavior accords the elements of robbery and the plot is severe. In summery, the behavior of Ming is robbery.After that, about the second question, as author I deem, the judgment of the court of first instance is inappropriate, because the circumstance in this case is not robbery of housebreaking. In this paper, “robbery of room inside household” is divided into 2 circumstances, the robbery of outsiders and cohabitants. On first condition, this is robbery of housebreaking, no matter where this offense happens, in a public area or a private room? Under the second circumstances, when the cohabitants are not related to others, it is a robbery of housebreaking. In contrast, it is not. I give 3 reasons for that. Firstly, the one who breaks into the room is the head of the household, it is a legitimate “In-house” because of the commitment of victim. Secondly, these cohabitants live together and access randomly. The room is not the one, which is protected by criminal law, because the room lacks two requested features. Thirdly, the intention to grab comes into being after Ming was shone in the same big household with his parents, which can not meet the subjective requirement. So, Although Ming entered the house of parents and grabbed, it is not a robbery of housebreaking. At last, it comes to the identification of surrender. In this paper, I give 4 foundations for judgment. Firstly, there are the two elements of the establishment of surrender. At the same time, one should also accept the censor and judgment of the nation. It is essential and the proper meaning of the two elements of the establishment of surrender. Secondly, the proof standard of the initiative of surrender is, he should tell the police clearly that, he goes to the police station for the purpose of surrender. Thirdly, one surrenders to justice voluntarily and confesses his own crime truthfully. And the two elements should be coherent. Fourthly, it should be distinguished, whether it is surrender under questioning or confession after interrogate, when one turns over fast all the fact not initiatively. So, the behavior of Ming is not surrender but confession, and his ground of appeal is not justified.KEY WORDS：robbery of common family property, rooms inside household, surrender, confession