The Discussion On The Principle Of Explicitriess In Crime Of Picking Quarrels And Provoking Troubles

Crime of picking quarrels and provoking troubles is one of the mostcontroversial crimes in criminal law theory and practice. Although it has beenappeared more than10years in the provisions of the Penal Code, there is alwayscontroversy about its contradiction with the principle of legality. And the legislationand judicial do not have the effective solutions, including its modification in theCriminal Law Amendment (Eight) also lack the principle of explicitness. However,the promulgation of the Criminal Law Amendment (Eight) undoubtedly gives arevelation to the academics and practitioners---the blind accusation to crime ofpicking quarrels and provoking troubles do not have practical significance. From thesocial control function of the criminal law, the presence of crime of picking quarrelsand provoking troubles is essential, and the exploration in its realization of theprinciple of explicitness is useful to the development of criminal law. Based on theabove background, we intend to study on the principle of explicitness about the crimeof picking quarrels and provoking troubles and hope to find the method of resolvingthe problem of its lacking the principle of explicitness from the existing theoreticalresults and practical experience.This article includes four parts except the introduction and the conclusion:The first part analyses the necessity of crime of picking quarrels and provokingtroubles’ existence and the unavoidable imperfection of its legislation, as so to raisethe question of this article---the discussion of the principle of explicitness in crime ofpicking quarrels and provoking troubles. This part starts from the legislative historyabout the crime of picking quarrels and provoking troubles, seeking the historicalreasons to its contradiction with the principle of legality. Crime of picking quarrelsand provoking troubles should be born based on the principle of legality, but it is stillfar from the requirements of the principle of legality, which is because the vague legalprovisions of the criminal law. There are no reasonable and effective solutionswhether in legislative or judicial actions. The theory controversy to crime of pickingquarrels and provoking troubles has never stopped, even existed the view of abolishing the crime of picking quarrels and provoking troubles. However, from theperspective of current legal situation, it still has great practical significance to confirmthe existence of crime of picking quarrels and provoking troubles. Although there issome confusions about its identification in judicial practice, but the most importantthing is to identify and solve the problem.The second part is the focus of this article about analyzing the principle ofexplicitness in crime of picking quarrels and provoking troubles. We identify theconstituent elements of the specification about the crime of picking quarrels andprovoking troubles, such as “casual”,“forcibly taking” and “public places”, and thevague incriminate standards, such as “vile” and “serious”. Based on the principle ofsubjective and objective perspective, we’re in forward to clarifying the provisionsthrough by the explaining methods.The third part combined with the second part analyze the principle ofexplicitness of the crime of picking quarrels and provoking troubles, and discuss theunclear boundaries with other crimes in judicial practice. Because of itscomplementary nature, the crime of picking quarrels and provoking troubles is verysimilar with some other crimes in behavior manners, which lead to difficulties inhandling real cases. Although in such situation, there are also solutions. Based on thecurrent research and application of the local judicial opinions, we give somerecommendations about distinguishing the crime of picking quarrels and provokingtroubles and other crimes.The fourth part attempts to put forward ideas on constructing the principle ofexplicitness of the crime of picking quarrels and provoking troubles. We advice toclear the crime of picking quarrels and provoking troubles through judicialinterpretation and dissemination of a typical case, which is easy to be consideredreasonably in the judicial practice.