转化型抢劫未遂形态的理解与司法适用
Understanding and Judicial Application of Attempted Forms of Converted Robbery

转化型抢劫是指，犯盗窃、诈骗、抢夺罪，为窝藏赃物、抗拒抓捕或者毁灭罪证而当场使用暴力或者以暴力相威胁的行为。转化型抢劫又称为事后抢劫，在实施前罪行为之后，又基于特定的主观目的当场采取了暴力、威胁手段，进而符合条件转化为抢劫罪。转化型抢劫的条款自出台以来，引起学界诸多讨论，其未遂形态在刑法学界仍然存在较大争议。对于转化型抢劫是否存在未遂形态，各学者有不同的观点，从法律拟制、刑法原则、风险控制理论等角度来看，转化型抢劫作为特殊形式的抢劫罪，应当肯定其存在未遂形态。在承认转化型抢劫存在未遂形态的基础上，采用何种标准判断未遂形态也是值得讨论的问题，为保证刑罚的一致性，应采用与普通抢劫罪相同的认定标准，这是立法和司法协调并进的必然要求。
Converted robbery refers to an act in which a perpetrator, while committing the crimes of theft, fraud, or forcible seizure, uses violence or threatens violence on the spot to conceal stolen goods, resist arrest, or destroy criminal evidence. Converted robbery, also known as after-the-fact robbery, is the crime of robbery in which violence or threats are used on the spot based on a specific subjective purpose after the previous crime is committed, and then it meets the conditions to be transformed into a crime of robbery. Since the promulgation of the provisions on converted robbery, it has aroused a lot of discussion in the academic circles, and its attempted form is still quite controversial in the criminal law academic circles. Scholars hold differing views on whether an attempted form of converted robbery exists. From the perspectives of legal fiction, criminal law principles, risk control theory, etc., converted robbery, as a special form of robbery, should be affirmed to have an attempted form. On the premise that the attempted form of converted robbery is recognized, determining the appropriate criteria for assessing such an attempted status remains a subject worthy of discussion. In order to ensure the consistency of punishment, the same criteria should be adopted for the crime of ordinary robbery, which is an inevitable requirement for the coordination of legislation and the judiciary.