"The prosecutor may respond to the defender's arguments." The presiding judge said.

"In response to the circumstances of attempted robbery raised by the defender, as far as this case is concerned, we believe that this case is a crime of transformative robbery, and in the process of transforming from theft to robbery, there is only the question of whether this crime is transferred to another crime, and as long as the appellant Shen Hu's conduct meets the conditions for transformation, it constitutes the crime of robbery, and the robbery should be completed. In other words, as long as the appellant Shen Hu committed violence or threatened violence, the theft was completed when it was converted into the crime of robbery. There is no such thing as an attempt. The inspector said sonorously.

"The following is the response of the appellant Shen Hu's defender to the prosecutor's opinion." The presiding judge lifted his eyelids and said.

"Presiding Judge and Judge: The defender believes that the crime of transformative robbery is also a crime of robbery, and its criminal form should also be determined in accordance with the criminal form of ordinary robbery, so there should be completed and attempted forms like ordinary robbery. Here's why:

1. In theory, there is a distinction between attempted and completed robbery

In this case, since the appellant Shen Hu had already committed acts such as theft, and had the objective conditions to commit violence or threaten violence on the spot (causing minor injuries to the security guard), it was obvious that he had "already started to commit a crime", so there was no preparatory form for committing a crime in this case.

However, the crime of transformational robbery requires a certain amount of time and space from the basic criminal act (theft) to the implementation of a new act (violent resistance to arrest), and then to the completion of a new act (successful after being transformed into a robbery), which makes the existence of criminal suspension or attempted existence a realistic possibility.

II. Application of the principle of proportionality of crime and punishment

The crime of robbery distinguishes between completed and attempted robbery in order to identify the degree of harm caused by the criminal act to society, and then determine the corresponding criminal responsibility.

The perpetrator of the crime of transformative robbery generally only has the intent to steal, defraud, or snatch before the nature of the crime changes, so the degree of subjective malice is relatively small. If no distinction is made between transformational crimes, they are all found to have been completed, which is very likely to lead to heavier sentencing, violating the principle of proportionality of crime and punishment.

In this case, although the appellant caused minor injuries to the victim, he did not obtain the property, and the appellant should be considered an attempt according to the sentencing standard for the crime of general robbery.

If Shen Hu is found to have completed robbery without distinction just because he has committed the crime of transformational robbery, his sentence is obviously heavier than that of ordinary robbery, and it is obvious that the punishment is not commensurate with the crime.

Article 269 of the Criminal Law only provides for the transformation of crimes.

Article 269 of the Criminal Law only stipulates that a person who commits the crime of theft and uses violence or threatens violence on the spot in order to resist arrest shall be convicted and punished in accordance with the provisions of the crime of robbery. This provision only indicates the establishment of the crime of transformative robbery, and does not deny the distinction between completed and attempted forms, nor does it stipulate that the crime of transformative robbery is unified as a completed crime.

The defender argues that the conditions for constituting the crime of transformative robbery and the form of the crime are two different concepts, and the transformation act only leads to a change in the nature of the entire act, that is, from the crime of theft to the crime of robbery, but it cannot prevent the division of the crime of robbery into the form of completed and attempted robbery. Therefore, after it is established that the act of theft is transformed into the crime of robbery, it is still necessary to distinguish between the attempted and completed crime of the converted crime of robbery.

IV. Criteria for the crime of transformative robbery completed and attempted

The defender believes that the main difference between the crime of transformative robbery and the crime of ordinary robbery lies in the sequence of the use of violence and coercion, the crime of transformative robbery takes the property first, and the use of violence comes later, and the crime of general robbery is the use of violence first and the possession of property later, and there is no substantive difference between the two in terms of the composition of the crime.

According to the "Opinions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Criminal Cases of Robbery and Snatching", whether it is the theft of property or the cause of minor injuries to others, it is a completed robbery.

For the crime of transformative robbery, the criteria for determining completed robbery should be consistent with the above standards, and where property has not been stolen and no consequences have been caused to others with minor injuries or more, it shall be an attempt.

In this case, the appellant, Shen Huxian, stole a battery worth RMB 150 and caused minor injuries to the security guard by committing violence to resist arrest, which should be convicted and punished for robbery.

Although the appellant had taken off the battery and put it on his electric bicycle and illegally took possession of the property, in the subsequent process of resisting arrest, the appellant Shen Hu did not take the battery with him when he fled the scene, but left it at the scene without actually obtaining the battery.

The defender argued that in this case, the appellant Shen Hu's illegal possession of property in the process of theft could not be determined to be the theft of property in the crime of robbery, that is, the completion of the first act does not necessarily lead to the completion of the later act.

In addition, the appellant's resistance to arrest only caused minor injuries to the security guards, and did not reach the consequence of minor injuries or more.

In summary, the appellant in this case did not rob the property, nor did he cause minor injuries to others, and the original trial court found that the appellant Shen Hu was guilty of robbery, but did not apply the relevant provisions on criminal attempt to reduce the appellant's sentence, and the sentencing was obviously improper, and requested the court to change the sentence in accordance with law. Complete! Fang Yi said.

……

“…… The collegial panel has deliberated and formed a verdict in this case. In response to the opinions of the prosecution and defense, combined with the focus of the dispute in this case, and based on the facts and evidence of this case, this court makes the following comments:

Shen Hu stole other people's property and used violence on the spot to resist arrest, and his actions constituted the crime of robbery and was an attempt.

The original trial court's characterization of the crime and the mitigating circumstances found were not improper, but it did not find that the robbery crime in this case was an attempt and should be corrected. The verdict reads as follows:

The original trial court's verdict on the conviction of appellant Shen Hu was upheld, the sentencing judgment was revoked, and the sentence was changed to two years' imprisonment. The presiding judge pronounced the verdict.

The court of first instance sentenced Shen Hu to three years in prison, and Fang Yi recommended a sentence of one year in prison.

Fang Yi was not surprised when he heard the verdict, because such a verdict was expected by him, and the court could adopt the lawyer's defense opinion, but the lawyer's sentencing recommendation was only a reference most of the time and was rarely adopted by the court.

Shen Guilin, who was in the auditorium, watched his son being escorted out of the courtroom by the bailiff, and the father and son looked at each other with complicated eyes. When Shen Hu's figure disappeared at the door of the court, Shen Guilin's eyes moistened.

"Lawyer Fang, if I apply for a retrial, can my son's sentence be reduced?" Outside the gate of the court, Shen Guilin looked at Fang Yi and asked.

"Difficult! Personally, I find it difficult. Do you want to file for a retrial? Fang Yi asked.

"Hey! Forget it, since there's no hope, forget it! Shen Guilin sighed.

Shen Hu's family has been detained in the detention center for more than four months, and he will come out in more than a year before the trial.

Shen Guilin weighed it again and again, and finally gave up the idea of applying for a retrial and commuting his son's sentence.

(End of chapter)