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亲属之间盗窃与普通盗窃在定罪量刑上存在差别,这在大陆法系诸国的刑法典中都有所规定。从犯罪构成方面考虑,亲属间盗窃的不法与责任程度有所减轻;从刑事政策方面考虑,惩罚亲属间盗窃难以收到预期的刑罚后果。处理夫妻间盗窃的案件时,夫妻关系的认定不应限于民法上有效缔结的婚姻,而是应当基于实质的刑法解释,以两人是否具有实际共同生活的意思为判断基准。
There is a difference between conviction and sentencing for theft and ordinary theft among relatives, which are stipulated in the Criminal Code of civil law countries. From the aspect of the composition of crime, the degree of lawlessness and responsibility of theft among relatives has been alleviated; from the aspect of criminal policy, it is difficult to receive the expected criminal consequences of punishment of theft among relatives. When dealing with cases of theft between husband and wife, the identification of the marital relationship should not be limited to the marriage concluded in civil law, but should be based on the substantive interpretation of criminal law and whether the two people have the meaning of actually living together.