2013年4月4日起施行的《关于办理盗窃刑事案件适用法律若干问题的解释》第二条规定了“数额较大”按正常标准50%确定的几类情形,其中包括“曾因盗窃受过刑事处罚的”。由于该规定的出台,导致司法实践中出现了一个新的争议点,即“曾因盗窃受过刑事处罚”能否既作为认定盗窃行为人盗窃“数额较大”的依据,又作为其构成累犯的前提。本文拟通过一个案例阐述一种观点:对于曾因盗窃被判处刑事处罚,五年内再犯应当被判处有期徒刑以上刑罚之罪的犯罪分子应当认定为累犯。 Article 2 of the Interpretation on Several Issues Concerning the Application of Law in the Criminal Cases of Theft entered into force on April 4, 2013 stipulates several types of situations, such as “large amount”, 50% of the normal standard, including “ Because of theft by criminal punishment ”. As a result of the promulgation of this regulation, a new controversy emerged in the judicial practice, that is, whether criminal punishment for theft was possible as a basis for identifying the theft of a theft agent as a large amount, It constitutes a prerequisite for recidivism. This article intends to elaborate a case by way of a view that a criminal who has been sentenced to criminal penalties for theft within five years and who should be sentenced to more than one year in prison should be considered a recidivist.