The Judicial Study Of The Crime Of Hooliganism

The crime of hooliganism, prescribed by articles160of Criminal Law of1979, hadincluded the crime of affray. The Criminal Law of1997(the latter Criminal Law is associatedwith the Criminal Law of1997, is not associated with Criminal Law of1979) had abolishedthe crime of hooliganism and had the affray singled out, which became the charge of articles292. The current Criminal Law prescribes the crime of affray generally, and the charge in theindictment is very vague. The lack of concrete judicial interpretation leads to define thedifferent situation of the affray. Hence, the understanding and the result of the crime of affrayis different in the judicial practice. This thesis will discuss the legal history, the concept, theelements of crime, the error of cognition, the reason and identification of transformation ofcrime, the aggravating circumstances of armed affray.The crime of affray, including the two behaviors of the gathering a crowd and fighting, isassociated with the one part which at least has three person and another part which at least hasone person commit the affray. As the multi-act crime, the crime of affray does not require allthe behavior of the objective circumstances has become the crime. All the behavior of theobjective circumstances is just the accomplished element not the essential element. Targeterror and strike error of the affray have divergence in the cognition of this crime. The authorholds that even though the actor mistake the A for the B, and the A has the same legal interest,the actor’s behavior will be judged as the affray only that the actor has the subject intent andinfringes the social public order. If the error of the behavior leads to the strike error which thefactual victim is different from the target, the crime of affray should be analyzed by theindividual case, which may comprise concurrence of the attempted intentional crime andcriminal negligence and terminate the criminal intention, which may not comprise thetermination of the criminal intention and become the accomplished intentional crime.The articles292, section2of Criminal Law prescribes that whoever assembled a crowdto have brawls, thus causing a person serious in juries or death, is to be convicted andpublished according to articles234and232of this law. Whoever assembled a crowd to havebrawls, thus causing a person serious in juries or death, is to be convicted and published asintentional crime or murder crime which is the crime conversion. The author holds that when the affray convert into the intentional crime or murder crime, the actor has the intention ofinfringing the health and depriving the life in subject and has committed the behavior ofinfringement and murder, which conform to the principle of correspondence betweensubjectivity and objectivity and become the crime conversion. In judging the actor know thatone’s own act will cause injury and death and of hope for or indifference to the occurrence ofthose consequences, the judges should analyze the concrete circumstances, like the tool, theway of striking, the part of striking, language, scene of crime, post processing, nature ofdispute, injury identification, the defendant’s statement etc. For the cognition of the subject ofthe crime conversion, the judges should take the actor’s effect and role, the requirement ofjoint crime into the consideration of defining the scope of the subject of the crime conversion.The aggravating circumstances of affray which is the cognition of the armed affray can nottake the equipment as the only standard to judge the affray. The actor who does not take theequipment should be taken into the scope of aggravating circumstances by the standard of theactor of joint crime.Because of the multiple and complexity of the affray, it is necessary to perfect thespecific provision. Hence, in this thesis, the author appeals to the relative agencies introducingthe judicial interpretation to guide the judicial practice.