The Verification Of The Defiance And Affray Crime

The defiance and affray crime is unique in China, stipulated in"the Criminal Law of the People's Republic of China"revised in 1997, Article 293. This provision provides a way to list four specific troubles in the act, and attached by the plot request. This basically solves the original hooliganism problem appears random conviction. However, the four acts of the defiance and affray crime and the many ways constitute elements of a crime exists between the degree of overlap, identified in judicial practice the defiance and affray crime and other criminal difficulties. Although the Supreme People's Procuratorate handles jointly with Ministry of Public Security on what to be bad for the circumstance and the circumstance has carried on the preliminary stipulation seriously, it still lacks the feasibility in the judicial practice, moreover the defiance and affray crime's four behavior way to have the certain extent with between some crime constitution important document the superposition, causes in the judicial practice to recognize this crime and other crime existence difficulty. Based on the above reason, the author referred to"the Criminal Law of the People's Republic of China"revised in 1997 and the related judicial interpretation and the stipulation, profited from the research of the defiance and affray crime's chapter of the fellow seniors, composed this article. The author is divided four chapters to complete the defiance and affray crime recognizing.The first chapter for the defiance and affray crime outline. The author thought that carries on the analysis to the defiance and affray crime historical evolution and the charge nature, is the accurate limits the defiance and affray crime's constitution important document and the defiance and affray crime and other crime boundary premise and the foundation. The author through the analysis to the crime reason of the defiance and affray crime which is in sole possession of as our country, inquired into that picks a quarrel stirs up trouble the behavior from at first as a hoodlum crime's in concrete behavior, to decomposes the independent achievement crime the historical evolution, thought that stipulation of the defiance and affray crime the has the supplement nature. The author induces it into the following two aspects: First, the establishment of the defiance and affray crime is not only to comply with the composition of elements of other crimes as premise, but also calling for lower than other criminal elements. Secondly, under normal circumstances, as long as it can constitute other crimes, it should be punished by the other criminal conviction, only if it can not constitute other criminal cases, but it can pose the defiance and affray crime in the crime situation, it can be convicted and punished in order to cause the defiance and affray crime. But more important than punishment to the crime of the defiance and affray crime intentional assault, extortion, robbery, the crime of intentional destruction of property of basic legal punishment, it also committed the same acts of the defiance and affray crime and intentional assault, extortion, robbery, vandalism property crime cases, in order to Imaginative Joinder from the felony.Chapterâ…¡is identified the objective elements for the defiance and affray crime. The author explains each of the four convictions behavior and circumstances of the defiance and affray crime, hoping that the judicial practice can be helpful. In my opinion, any type of assault of the defiance and affray crime, how to determine random, should be based on most people's standards. That is in the same external circumstances and conditions, in accordance with the crime of human reason, whether the assault was generally understood and accepted. Bad plot is a means assault causing minor injury to the results of the above, or resulting in suicide, mental disorders and other serious consequences, or armed assault, or received order punishment more than two times because of the defiance and affray, then they beat the others. Chase and intercept type of the defiance and affray crime, aggravated assault with any type of requirement is slightly different, it means that severely affected in normal work, production, life, or causing others to mental disorders, suicide and other serious consequences, or received order punishment more than two times because of the defiance and affray, also chase, intercept, abusive of others. The serious plot from strong take insists, any damage type of the defiance and affray crime, it means that strong take insists, or any damage to public and private property occupied by the value of 2,000 RMB or more, or more times (three or more) strong take to force or arbitrary destruction, occupation of public and private property, or received order punishment more than two times because of the defiance and affray, also insist on strong, or take any damage, occupy public and private property. The serious disruption from creating a disturbance type of the defiance and affray crime, it means that it occur crowd panic and escapes serious chaos, or disturbs the production, business activities, resulting in serious losses, or because of creating a disturbance, casualties or significant loss of public and private property.Chapterâ…¢is identified for the subjective elements of the defiance and affray crime. I believe that the act of the defiance and affray crime and the person's subjective motive does not require the head , a specific criminal purpose and intent of the will of the factors that are not directly have the same connotation, the so-called criminal intent of the defiance and affray crime does not have the distinction between the role of guilt and innocence, or the role of this crime and that crime, a specific criminal intent should not be as an element of the defiance and affray crime and the subjective elements of composition, in other words, the establishment of the defiance and affray crime do not require a specific criminal purpose; in addition, for a long time of widespread hooliganism is no specific motive for the practical significance of the general public and is difficult to know the psychological state, whether the behavior of human disturbed the public order, it does not depend on whether the perpetrator has rogue subjective motives, even if perpetrator has not rogue motivation, but as long as the perpetrator of the act in accordance with the composition of elements of the defiance and affray crime, it can be identified as the defiance and affray crime. Therefore, the fugue motivation does not have the distinction between the role of guilt and innocence, or the role of this crime and that crime, and it should not be regarded as the subjective constituent elements of the defiance and affray crime.Chapterâ…£is for the boundaries between the defiance and affray crime and other crimes. In this part I discusses of the main the defiance and affray crime with the problem of defining the crime of intentional injury, robbery, extortion crime, intentional destruction of property crimes, assembling a crowd to disturb order in public places and traffic order offenses. In this section I also reiterated the complementary nature of the defiance and affray crime, with other crime definition, for certain cases, I advocate that Imaginative Joinder of Offenses from a weight should be at fault.