Affray Conduct Criminal Law Applicable Standards Of Practice Inquiry

As a common social phenomenon, Affrays ACTS has been incorporated in the adjusting range of "criminal law" and "public security management punishment law’’. However, Viewing from a large number of judicial cases, China’s current judicial practice still exists some unreasonable problems when dealing with affray acts, for instance, some affrays acts which should not be treated as a crime are actually characterized as affray sins. Some constitute the crime of affray behaviors are imposed with overly harsh penalties. The article mainly aimed at resolving the problem of current judicial practice for affrays behavior which poses too much rely on the processing of the criminal law, instead of making the advantage of adjustment means such as administrative penalties to regulate the affrays acts.The article is divided into three parts except for preface and epilogue, respectively an overview of the present situation and the existing problems in the way we deal with affrays acts; the analysis of the cause of the problem; Put forward the countermeasures to solve the problem. The full text totally consists of about 25000 words.The first part mainly introduce the present situation and the existing problems in the way we deal with affrays acts in the current judicial practice.Our country’s current judicial practice sentence to punishment to some slight degree of casualties and property loss cases; brawl mode only for general behavior rather than use weapons or other tools; fight places are remote affrays cases. Some affrays cases were sentenced to even more severe punishment. We carried on the statistics according to some data of the injury of the victim; of the defendant punishment; of the difference between principal and accomplice; of the defendant’s age distribution.At present, there are three main problems: 1. The boundary between a criminal penalties and administrative penalties is still unclear; 2. Severe-penalty doctrine remains relatively strong; 3. A lack of practical standards in dealing with affrays acts.The second part discusses the Criminal Code of Modesty and the criminal policy of tempering justice with mercy, with these two aspects to discuss the basic position of Criminal Justice to regulate affrays acts. At present, the solution to affray behavior approach is clearly contrary to the principle of Criminal Code of Modesty.First, the delimitation of affray acts crime circle is against the restraining criminal law, our current legislation of affray crime in order to the crime circle is vague, which has not yet reached the "introverted" and "rigid" requirements, so that the affray crime circle boundary is not clear, which results in determining the nature of some general affray acts as affray crime in practice;Second, the punishment of penalty of affray acts is against the restraining criminal law, China’s current judicial practice for some affray behavior penalty is rather severe,which goes against the principles of compatibility of crime, besides, this penalty is uneconomic, Harsh punishment not only caused a large expenditure of penalty cost, but it may not be able to have the desired effect, it may be counterproductive;Third, to deal with affray behavior is not fully implemented the policy of tempering justice with mercy, “tempering justice with mercy” is aimed at dealing with behaviors that endanger the society as the following way: be strict whenever necessary, considering that the temper justice with mercy criminal policy is proposed out of the reflection and correction of "strike hard" policy, and therefore in the process of implementation of the policy,it should more focus on the "mercy", however, the solutions to the affray behavior are still inclined to be harsh.The third part proposed specific countermeasures to deal with affray acts, which is based on analysis of the foregoing problem. First, during the judicial practice, the specific motives of affray behavior and consequences as well as dangerousness and other factors should be taken full account. Those do not constitute a crime should not be handled as a crime, those do, could inflict relatively lighter punishment. What’s more, it is also vital to strengthen the disposition to rule of law and professional standard of frontline staff.Second, to make clear that criminal law is a law of guarantees,be able to tell the difference between punishment and administrative penalties and their respective boundary adjustments, insisted that only when administrative penalties or other ways of adjustments are invalid that subject to punishment.Third, to add some incriminating standard of principle to the "Criminal Law" for affray, as well as some general guidance, including the motivation, harmful consequences caused by the perpetrator’s dangerousness and so on. At the same time it could develop specific judicial interpretation to make the standards of incrimination more comprehensive and specific so that we can effectively understand the judicial practice work, also can solve the enactments overlapping problem between the "Criminal Law" and "Security Administration Punishment Law".