The Jurisdiction Dilemma And Legislative Perfection Of The Crime Of Creating Disturbances

The crime of creating disturbances is a common disputed crime in judicial theoryand judicial practice. Consensuses of the accusation definition, the constitutiveelements of crime, and the Value Orientation and function are not achieved. Thedisputes are very extensive, and it comes to how to understand "at will" and how todetermine the subjective constitution of the crime, what’s the illegality and uniquefeature of the crime, whether the current legislation is appropriate or not, evenwhether the crime should be abolished, etc. These disputes make some difficult injudicial practice. Based on the need of theoretical research guiding practices, theauthor discusses this crime from the following four aspects.In chapter1, from the legislative background, the author defines the crime ofcreating disturbances and put forwards clearly that "hooligan motivation" should beexcluded from the constitutive elements of this crime, because the criminal law hasn’thad provide that the crime of creating disturbances needs to have "hooligan motives",and the definition of "hooligan motives" is not clear, it can not be proved, and themotive for the crime was never constitutive element of crime.In chapter2, the author analyzes the crime of creating disturbances from theexisting criminal law. The borderline between crime and none-crime, this crime andother related crime of the crime of creating disturbances, and the penalty arrangementis discussed in this chapter. As to the differences of crime and non-crime, the author holds that the register criterion puts too much emphasis on criminal results is againstthe law. As to the penalty arrangement, the author considers that the imbalance of thepenal system is caused by the too heavy penalty arrangement. Based on lots of actualcases, the author analyzes the crime of creating disturbances and other similar crimesincluding the crime of willful and malicious injury, the crime of affray, the crime ofrobbery, the crime of extortion and so on. The author finds out that there are somemisconceptions of the crime of creating disturbances in the judicial theory and judicialpractice, such as overemphasis on the subjective element of the crime, relatively theneglect of the objective elements of the crime, and the problems of legislation.In chapter3, the author discusses the retention or abolition of the crime, valueorientation, the key characteristic, and the illegality of the crime. In author’s opinion,the crime is necessary. We should take Erfolgsunwert for this crime. The crimeprotects the social legal interest and complements other crimes. This crime cancomplement other crimes, and it is backup force of the Security AdministrationPunishment.In chapter four, the author analyzes the problem of the legislation based on thejudicial practice. The author criticisms the subjectivist tendency in legislation, anddiscusses that how to deal with the problem when various behaviors exists at the sametime and the imagination concurrent of this crime and other crimes. Based on theabove, the author proposes how to modify article293of Criminal Law and improvethe judicial interpretation.