The Beating Type Stir-up-trouble Crime

Stir-up-trouble crime is a crime a controversial in criminal law theory and judicial practice, as one of four types of the statutory beating type stir-up-trouble for common more become the focus of attention.In the criminal law theory, the protection of legal interest for the path, the principle of a legally prescribed punishment for boundaries, constitution interpretation of beating type stir-up-trouble crime. The dual legal crime with the public order and security of person, determines the legislative status crime independently of his crime and the application of space. The combination of arbitrary angle of "casual" be interpreted from the objective and subjective, objective and subjective according to the first order, in two steps from the perspective of objective behavior of the various elements. Take physical force to "beat" the understanding of the standard, physical force point must be the victim’s body, is not required to touch each other body, beating on the strength and no limits and requirements; three is the "vile" on the theoretical background of the plot committed and legislative provisions of understanding. Motivation is the subjective elements of the crime of intentional beyond; include indirect intention, there is understanding of the results of serious injury, death does not require subjective.In the judicial aspect, our country criminal law article13is a prerequisite for the crime, elements of the meet is the key; the fuzzy boundary treatment of quantitative change and qualitative change, crime and crime to determine a different sequence. On the relationship and comparison of beating type stir-up-trouble crime and the crime of intentional injury, should give up two crime absolute distinction thinking mode. In recognition of the two crimes similar premise, carrying on the analysis to the legal interest and elements, two kinds of relations that complement and overlap, and puts forward the related problem, namely the heavy damage deliberately attempted to have a legal basis for punishment.Based on the analysis of the two level, the hang attack case verdict comprehensive assessment. The actor’s behavior should not be beating type stir-up-trouble crime qualitative, should be processed in a deliberately hurt qualitative distinction injured attempted respectively, a behavior as intentional injury (injured attempted), in comparison with one lighter or mitigated punishment; a behavior as intentional injury (injured attempted), in accordance with the existing filed for investigation and prosecution standard, not as a criminal punishment. Judicial organs should boldly put aside the intentional injury crime only results on the judicial practice of detention, according to article third of the criminal law "law expressly provides for the crime, in accordance with the provisions of law conviction and punishment", in accordance with the intentional harm elements and legal standards, on the analysis of two malignant attack event specification, can be come to make the public satisfied social effect.