On The Identification Of Picking Quarrels And Provoking Troubles In Criminal Law

Establishment and application of the Crime of Picking Quarrels and Provoking Troubles has aroused a lot of disputes in both theory and practice.This crime has strong Chinese characteristics.Derived from the crime of hooliganism as "pocket crime",its application did not reduced with end of planned economy era.The general logic of historical development is that even in the closed society,a high degree of consistency in personal morals and values makes the act of provoking troubles not seriously harmful but rejected.In the era of value diversification which advocates the penalty modesty principle,tolerance of society needs not use this type of charge.The truth is not like this.In 2011,the eighth amendment of criminal law added the crime elements and additional aggravated punishment,significantly reduced the requirements of the crime and confirmed its role;subsequent judicial interpretation showed the expansion trend in the network hitting rate,reprinted times as standards for Crime of Picking Quarrels and Provoking Troubles.At the same time,the Crime of Picking Quarrels and Provoking Troubles is common type of crime in the court.Its nine specific behavior elements are highly similar to or even homogeneous with several accusations in specific provisions of criminal law.And from time to time the four kinds of behavior elements of the crime can be used for simultaneous evaluation of a behavior,so the people's court are more inclined to simplify criminalizing thinking.This crime in the judicial stage presents synchronous expansion.To drawing the line of Picking Quarrels and Provoking Troubles doesn't complete the oversimplified formula according to which the constitutive elements correspond to the behavior reality.Four kinds of behavior elements lack of logical exclusion,so the specific combination of group behavior often treat you like myself,a typical example of which is beating happens highly with chasing,intercepting,abusing,intimidating and other acts so the application confusion appears.Due to different damage degree and judges' personal elements,the transformation in accusation will lead to greater judicial dispute.The author selected a total of 7371 judgments on the internet about Picking Quarrels and Provoking Troubles in national court system from 2014 to 2016 as a general analysis of the sample,particularly focuses on the analysis of 600 judgments of them.The author tries to answer the above question systematically following the method of combining value speculation and logicdeduction.The article is divided into five parts totaling about 230 thousand Chinese words.The first part introduces the background of the system,law as well as theory,explaining the data sample and summarizing the law of judicial affairs and its insufficiency.Firstly,it briefly descries dualistic structure of sanctions pattern of criminal law and security administration punishment act after abolition of reeducation through labor system,clears sanctions level,reviews theoretical debates derived from the eighth amendment,highlights both theoretical and practical value of analysis on Picking Quarrels and Provoking Troubles.Secondly,it reviews existing research,understanding the progress of research,including its short board,gaps and defects,to prevent this research from being repetitive and obsolete.Thirdly,through selection of judgment on the Internet after related judicial interpretation of Picking Quarrels and Provoking Troubles can find basic rules of judicial judgment,understand the trial judge the focus on norm and fact,and point out the representative and universal phenomenon and problems in the judicial activity.For example,"the destruction of social order" becomes judgment dogma,setting aside the public order in the qualitative;public order relates not to legal interests;public order and public places order has been confused.Also,hooligan motivation is incorporated into the judgment of behavior;economic disputes are partly overlapped by Picking Quarrels and Provoking Troubles against property;creating disturbances become the normal reason of conviction;and some other problems.All of above research lay a solid issue and truth foundation for the subsequent countermeasure.The second part is to clarify values,norms and policies of Picking Quarrels and Provoking Troubles.First of all,the paper analyzes the inherent relation of public order and legal interests protection,confirms the necessity of Picking Quarrels and Provoking Troubles.The position of Picking Quarrels and Provoking Troubles in specific provision of criminal law system indicates that its object is social order.However,the destruction of the social order at least indicates social legal interests and private interests are invaded by reality,that is to say,the public order Picking Quarrels and Provoking Troubles infringe is not suitable to be understood abstractly.The public order is inseparable from social legal interests.The social legal interests doesn't exist until the private legal interests are invaded by the reality.Therefore,the invasion of legal interests is the basis of conviction.Next,the separation of Picking Quarrels and Provoking Troubles from related crime as well as theinterpretativecriterion and the method on the basis of clear interpretation aim provide thethinking approach to judicial activity.Last,this paper emphasizes the necessity of Picking Quarrels and Provoking Troubles based on the features of criminal law balancing the society guard and liberty protection and its supplementary function.The third part is to discuss the ways of Picking Quarrels and Provoking Troubles and its contents,which is the main part in this thesis.First of all,according to the clause 1 article 293 of criminal law,it discussesdifficulties and doubt points in the conviction based on main sample.Secondly,it illustrates the function of Picking Quarrels and Provoking Troubles in accordance with specific case and criminal types,denying the argument of abolition and proving its improvement.Then,hooligan motivation is not advised to be listed in subjective consideration because its value changes.The “random” and “caprice” in the criminal law don't have exact definition and they are not suitable to belong to “indulgence”,so they should be regarded as suggestive statement.Finally,the author holds that the legal interest of public orderhas important narrowing function in terms of interpretation of the crime and that the nature of behavior should be based mainly on the interpretation of the meaning of the text as well as on the system,purposes and definition.Without independence,creating disturbances must be evaluated againThe fourth part is to discuss the influence of quantitative factors on quality.First of all,according to the existing judicial interpretation and judicial experience,it clearly defines the"public order serious confusion" degree from the two cases of direct and indirect consequences.Secondly,from the direct damage,the paper advises that the nature of the act,duration,intensity and property attributes nuisance victims' special situations and property factors,etc.,can be the evaluation criteria.Meanwhile,severe injure caused by arbitrary beating is viewed as abominable behavior.Again,from the indirect result,the quantitative elements of usurpation,the amount of personal injury and other results should require the actor knows or should foresee the cause and effect relation,especially "others mental disorders and committing suicide”.Then,the repeated Picking Quarrels and Provoking Troubles should be judged according to whether or not the public order and social legal interests are damaged and its times.Finally,the people who do Picking Quarrels and Provoking Troubles can be immunized from conviction if the other party has obvious fault.Due to the Picking Quarrels and Provoking Troubles caused by special social reasons(petition,demolition,economic disputes etc.),the judge should maintain a high degree of restraint balancing two harms.The fifth part discusses the actor's criminal responsibility via the patterns of human behavior.First of all,the attempt of Picking Quarrels and Provoking Troubles become a reality in the judicial practice.The argument for “artificial abstract dangerous crime” should be doubted;at least types of usurpation of property seem to be viewed as attempted behavior.From interpretation,whether the legal interests are under real risks or not should be regarded as criteria in order to avoid the judgment of initiating in advance.For the calculation of Picking Quarrels and Provoking Troubles,the common practice of judicial practice views the amount of damage and occupation as the criteria of accomplishment,and the attempted part as the plot of heavier punishment,which is reasonable.As to the person with general intention,there is no room for attempted amount,just taking actual property damage as the accomplished amount.Secondly,the determination of responsibility of joint Picking Quarrels and Provoking Troubles takes advantage as the judgment standard complemented by the doctrine of an important role and necessity as well as the cause of the crime.In addition to above,principal is not necessarily rigidly distinguished from accessory in each case.Finally,in the normal theory of criminal law,the nature and pattern of concurrence of Picking Quarrels and Provoking Troubles are one of the most Chinese characteristics reflecting the features of China's criminal law legislation.The doctrine of “imaginative joinder of offenses”shall be doubted.It should be distinguished from other related crime according to the public legal interests and judicial rule of law.When faced by difficulty in distinguishing,the judge can choose the heavier punishment based on the doctrine of “overlap of articles of law”.The judicial practice adopts one punishment doctrine is reasonable when multiple times and behaviors coexist,which embodying the principle of suiting responsibility and punishment to crime.