The Research On Restricting And Reducing "Pocket Crime" Atribute Of The Crime Of Defiance And Affray

"Pocket Crime" is not only the concept of legislation,but also the concept of justice,it's both legislative and judicial in nature."Pocket Crime" is a vivid term for one certain kind of crime,which are highly summarized and very fuzzy in the criminal law,or many related behaviors can be loaded into it on account of Judicator's sluggishness,habituation and randomness."Pocket Crime" has rich content,high capacity,difficult to define the connotation and extension,difficult to distinguish crime from non crime or this crime from other crimes,unstable state and large changes in characteristic."Pocket Crime" also has a positive value,accords with the process of China's rule of law,reflects the mature technology of legislation,is the profound reflection to maintain social order,is also an important supplement for other charges.“Crime of Defiance and Affray” belongs to "Pocket Crime ",it can be justified whether from the concept definition,the development history,Legislation and justice,or from the capacity,wording and phrasing,the distinction for other crimes.The status in the criminal law system of“Crime of Defiance and Affray" have four theories,which are "non-status"," equal status ","auxiliary status ",this paper agrees with the fourth theories,and analyzes that "Crime of Defiance and Affray",as an overall and interceptive accusation,has practical soil and theoretical foundation.Legislation and justice must be neck and neck and work in coordination.“Crime of Defiance and Affray" should adhere to the principle of modest and restraint on legislation,to limit currently,to reduce or abolish in future.The relevant modification must be well matched with the situation of China and the rules of law developments.On justice,it must be wary of "Pocket Crime"'s authoritarianism and order centered ideas,must be in strict accordance with the principle of legality and the principle of legal reservation.To take the definitive criminal public recognition as synopsis,the facts about“Crime of Defiance and Affray" should try to be distinct and clear,and meanwhile not to reject certain flexibility and scalability,to establish the punishment of fine and narrow range within the grade at the same time.To take legal interest function theory as warp,“Crime of Defiance and Affray" should realize the materialization of protective legal interest.The legal interest which be violated is the compound legal benefit,in addition to similar legal interests,it includes accompanying legal interests.To take the interpretation of criminal law as weft,the current two judicial interpretations about the Crime of Defiance and Affray should be absorbed into the criminal law or legislative interpretation,for make the definite provisions of the Crime of Defiance and Affray in the network space on the legislative level.It is an expression for objective interpretation to interpreter creating disturbances in the network space as creating disturbances in a public place,it's an inevitable requirement for subjective interpretation to restrict the fact into crime to order's confusion in the real public place.It's very useful to take the theory of other subjects with complementary for guide the restraint and reduction of the Crime of Defiance and Affray,especially sociological analysis is closer to social reality,easy to find the fundamental problem and to suit the remedy to the case.The third chapter mainly focuses on the research on theory of norms about Crime of Defiance and Affray.In the process of recognizing the Crime of Defiance and Affray,we should investigate that it has or not rogue motivation and whether it has violation of public order,violence or intimidation shall be only limited to the slight force,four kinds of behavior type has its specific connotation and denotation,expansion of the four kinds of trouble can not be arbitrary.Each behavior does not constitute the crime,but when they added together,there are two theory about how to deal with: "theory of comprehensive evaluation" and "theory of individual evaluation".This paper argues that the "individual evaluation",think this is determined by the structure of legal provision,the requirement of law and protection of human rights.The decision for applying to the clause aggravated of circumstances of crime,this paper insist that it should be required not only these repeatedly stir-up-trouble behaviors each constitute a crime,but also multiple stir-up-trouble behaviors gathered must belong to the same type.For distinguish Crime of Defiance and Affray from crime of intentional injury,crime of intentional destruction or damage of properties,crime of forcible seizure,crime of extortion by blackmail,crime of insult,etc.ordinary charges,the academic community often use the word“general”for generalizing those general circles,this paper think that it is not sufficiently rigorous and is not of universality,and most of the time not in work.Distinguish between charges of Defiance and Affray crime and common crime in the competition,this paper argues that the principle of priority for ordinary charges.About the relationship among the three forms of liability of Affray,this paper argues that reduce criminal responsibility as far as possible through civil responsibility or administrative responsibility,and advocates of trying to bring in reconciliation system for treatment of the Crime of Defiance and Affray.There are both difference and links between the Crime of Defiance and Affray and other pocket crimes,their attribute of "pocket" has legislative factor,“pockets” and the judicial practice have the close connection,and they all present the spreading and expanding trend,also brought a lot of confusion and burden to citizens.Of course,they also have different specific reasons of becoming the Crime of Defiance and Affray,the legal interest violated is different,the principle of treatment for other charges with competition is different,the Measures for perfecting on legislation has differences.The principle and guiding ideology for restricting and reducing the Crime of Defiance and Affray mainly are: Comply with public opinion,to follow the principle of modest and restraint,decriminalization,legally prescribed punishment for a specified crime,promote each other between legislation and justice,and so on.It should apply preventing article of Administrative rules and regulations with lawfully recognized evidence,“national regulation” is advised to restrict in “laws” and “Administrative rules and regulations”,Administrative rules and regulations is advised to abolish finally,and Replaced by other several charges of high clarity.The article of crime due to dereliction of duty which is proposed to set up and arrange separately from the crime of abuse of authority,expressly limited to subjective fault,main Suggestions on the legislative change to state functionary,the objective imputation theory is used on identifying the causal relations,end the dispute in theory and in practice.In practice,For Crime of endangering public security with dangerous method,in practice it should accurately grasp the suddenness,directness,destructive and lethality of "other dangerous method".The crime of destroying computer information system cannot blindly expand the cognizance of "serious consequences",the crime of organizing,leading,and participate in the underworld gangs should avoid "merge imputation" and "transfer imputation".the crime of huge property's unclear source should improve the working mechanism to prevent investigators inaction or disorderly.The fifth chapter mainly revolves around the theory of legislation for Crime of Defiance and Affray.major countries and regions of Statute law in the world have some charges which has different name but real similar contents,such as the crime of destruction of national peace in peace,Japan's crime of violence and crime of strong will,French's crime of affray with people gathered,Italy's crime of beating up,etc.They have a lot of experience which is worth our using for reference,such as limited only to misdemeanor and micro crime,must be gather a crowd,shorter sentence,less fine,including the construction of the administrative criminal law.Suggestions for the Crime of Defiance and Affray,to limit its crime motive,to make clear or remover "random","any","serious chaos" and "vicious" and "serious" etc.,To bring those content of high clarity in the four types of behavior written in the judicial interpretation into the criminal law provisions,to add the provisions of the fine punishment in basic terms,to increase “in the joint crime of Defiance and Affray,to punish the ringleaders and active participants” as the second paragraph,add "otherwise provided for in this law,according to the regulations of other" as the fourth paragraph,set up an implied terms for the situation of an affray results in serious injury or death as the fifth paragraph.To set up the system of security measures from the macro system,and set up special magistrates court with reference to a foreign court set structure.In the long run,for the crime of Defiance and Affray,to use the gradient type processing method to decompose merged,eventually abolished,this is the inevitable trend,is also the fundamental solution.