| The crime of affray contained in the the current "criminal law" provisions ofarticle292nd, a kind of frequent and common crime, caused great damage to thesocial order and people’s normal life.As the legislative provisions are too general, there is no standard unifiedapplication of laws in judicial practice, and resulted to the appearance of differentsentence to the similar cases.Because the provisions of the second paragraph of the affray crime problem istoo general, and lack of authoritative interpretation, the academic views and judicialpractice was not consistent, and finally affected the judicial application.So, it is necessary that we should correctly handle the problem in judicialpractice on the basis of understanding of the legislative intent of the criminal law, toensure the deterrence and punishment function as the modesty at the same time,according to the provisions of the criminal law principles and specific legalprovisions. This paper selected the judicial practice in the common crime crime of affray,based on the theory of the crime and joint crime, absorbing and referring to therelevant research results, proposed by the form of case analysis, in order to discussthe conditions and conversion range of subject of the transformation of thetransformed criminal conviction in affray controversial cases.This paper consists of five parts. The first part introduced affray crime cases,lead to the problem of affray crime. The second part provided a general convictionof affray crime. The paper introduced the theory and practice of nature and thetransformation in terms of the fight into a conviction condition from a mainstreamview. This part, by the application of constitution of crime and joint crime theory,intended to explore the transformed criminal legislation to fight from the angle of theconditions, nature and scope of the subject. The third part explained the definitystandards of the ringleader and protagonist, around the subject of affray conviction,and discussed the hot issues of large differences in judicial practice. The paperresearched and analysed the cases that included the ringleaders, active participantsand the transformed subject scope in cases of causing the death, and then put forward author’s own view. The fourth part,as to the subjective intent of affray crime, detaileddiscussion, combined with the case introduces judicial practice for controversialsubjective problem. The fifth part was mainly about legislation. According to thelackness of the existing provisions of the existing legislation, and the theory ofstandard of conviction, and conditions, around the transformation range and otherrelated problems, this paper finally put forward the conception of affray crime. |
