Research On The Problem Of Determination Of Crimes Of Affray

Because of defiance and affray crime is apart from the crime of hooliganism,elements and the expression is not specific enough, lead to identify this crime in judicial practice is not clear and the demarcation line between this crime and related crimes is unknown, so the legitimacy of existence has been criticized,known as "small pocket crime". This paper is the prerequisite to the existence in the affirmation of crime, the method of theory guiding practice discussion of specific issues in the judicial practice of the crime.This article through the analysis of the five suspected stir up trouble crime cases, lead to practice is widespread in handling relevant cases of disputes,and combining with the theory of "beating","take strong force","public places",a variety of provocative acts cross processing some difficult to affirm or differences the analysis of the problem, in accordance with the current criminal law and relevant laws and regulations under the premise, to draw their own conclusions.First of all, through the analysis of the Xiao Chuanguo suspected stir up trouble crime case on that,"beating" judgment based on double substitution principle to judge is more reasonable, not only on the basis of the suspects allegations or confession; this case also raises another question, namely"mayhem" and "trouble" of circle; the distinction between the two, we should accurately understand the relationship between "harm" and "beat", the relationship between the two understanding should be based on the combination of subjective and objective.Secondly, in the "take strong force" that the plot, violence, stress factors is inevitable, to distinguish the crime of "take strong force" behavior and robbed or blackmail and impose exactions on, violent intimidation factor existence degree is an important consideration factor.Again, due to the development of society, the development of network technology, for "creating a disturbance" and "public place" should be understood according to the theory of the interpretation of criminal law is properly expanding interpretation.Finally, for if the circumstances are serious, serious, serious confusion in understanding should be strictly in accordance with the new in2013on the application of stir up trouble crime judicial interpretation, although the judicial explanation and not exhausted all means of crime, but clearly in the legal principle of crime and punishment and the criminal law principle guidance, can not be arbitrarily enlarged or analogical interpretation; cross on a variety of provocative acts whether it can be identified as the circumstances are serious,or serious, should use comprehensive evaluation improved theory, namely in the judgement of specific elements without leave.