Picking A Quarrel And Making Trouble Crime Theory And The Practice Discussion

Trouble creating offense is one of the five separate charges out of from hooliganism in article 160 of 1979 Criminal Law. The decomposition of hooliganism made by amended Criminal Law been recognized by law school, it is conducive to sentencing in the judicial practice. The new trouble creating offense belongs to the circumstances of the offense; the plot became the dividing line between trouble creating offense and noncrime, which led to poor understanding in the judicial practice. The crime of creating trouble in the objective behavior will bring new challenges to the practice after refinement. For this purpose, I based on criminal law and relevant judicial interpretations, combine with the actual problems and specific cases in the practice following the basis theory of Criminal Law to analyze the Trouble creating offense systematically and deeply, I hope the global theory will be helpful to practice.Chapter one is the overview of the Trouble creating offense. I think the analyze of its concept, lawmaking status and limited conditions is necessary for finding the language and ways of research and is helpful for the expansion of the following views and finding its true essence. Through the generalization and analysis of the variety of viewpoints in current theory circle, I think it is not accurate to limited the concept of to "public places", this is not accord with the requirements of the principle of Criminal Law and specific statements to creating trouble in the detailed rules Criminal Law. It is better to clearly point out special purpose of the act and the specific motives and behavior in definition of the crime of creating trouble. Based on the above analysis, I defined the creating trouble as: pick trouble, beatings, chase, intercept, abuse others, take any damage, the occupation of public and private property, or gather together to create trouble in public places which cause a serious breach of public order act. In addition, because defining the crime of creating trouble in such acts in the Criminal Law is not original from our country, so to investigate the situation of the relevant legislation in other countries will help us better grasp of the offense, as well as providing better theory and legislative support for analyze conduct of creating trouble in this article.Chapter two describes application of crime of creating trouble. In judicial practice, the application of crime of creating trouble has been a hot topic in the theory circle. The distinguish of guilty and not guilty and the proper distinguish from one crime and another play an important role in sentencing convicted. I intend to use to analysis comprehensively by combining the criminal law theory of creating trouble crime and practice cases to take innovated theory analysis to creating trouble crime, robbery, intentional infliction of injury, assembling a crowd to disturb social order, assembling a crowd to disturb public order, the crime of extortion, intentional destruction of public and private property crimes and so on; use generalization and methods to analysis and discuss carefully, to settle down the difference opinions about the cases; to affirm the value of the existing of the creating trouble crime in new conditions; all of these can provide theoretical support to distinguish creating trouble crime and related crimes and necessary guideline to practice, thus to discuss the necessity of creating trouble crime in our country. According to the current items of Criminal Law and the above statement, combining with the common sense about the standard for"serious circumstances"in theory circle, I will analysis the whether the perpetrator's action belongs to the serious circumstances, the direct results and indirect consequences, behavior time and place, the perpetrator's consistent performance and other factors.Chapter three is thinking of perfecting creating trouble crime. After the creating trouble crime charges were established, because it is a fuzzy line between the objective elements of creating trouble crime and some adjacent crime and lack of clarity, so there are deviations in the operation of theory and practice. The author integrates the above system theory and comparative analysis, thinking of perfecting creating trouble crime on this basis, such as by improving the lawmaking of creating trouble crime, social mechanisms and so no to promote the harmonious development of society. By analyzing and researching the charges and items of the creating trouble crime, we find that the issues about creating trouble crime incorrect positioning the crime of creating trouble in the Criminal Law. As a result of analyzing the current condition and reasonable position of the crime of creating trouble, I am object to abolishing the creating trouble crime. In accordance with the above analysis, I believe that the controversial theory only says the difficulty in this crime, we should make improvement by legislation, increase its practicality by publish judicial interpretation to take full use of it, thus it is need to decompose and perfect the items about creating trouble crime in the Criminal Law in terms of legislation and social mechanism. For legislation, we should modify reference of Criminal Law of Italy and Criminal Law of Japan in the article 293 Criminal Law. Delete the "arbitrary destruction of property" in item (3) article 293 (3) from the creating trouble crime and list in to the in the counts crimes into the constitution of crime offence of destruction of articles of public and private property in article 75. Second, to make improvement in terms of social mechanism, the minor criminal cases increased, creating trouble crime subject shows the main features of the younger, and the total number increasing requires us to emphasis improving not only the legal system but also the social mechanism. Classical sociological theory believes that no one can be free from his life environmental impact; human socialization is the process of constantly adapting to the actual society. The environment plays an important role in young people's growth, for the development and progress of society; we must take effort to create a social environment which is relatively clean. At the same time, we should learn foreign experience and practice based on our conditions to continue to adhere to the principle of emphasize education; and focus on early prevention criminal actions through various channels and a number of measures, reduce the cost of crime control, so that it can get implement and improvement.