Research On Three Major Problems Of The Crime Of Gathering People To Engage In Affrays In Judicial Determination

The crime of gathering people to engage in affrays (hereinafter referred to as “the crime”,except in the contents and introduction) is a serious public order offence consisting of oneperson or more persons’ acts of organizing, planning, leading and commanding one person ormore to fight or the acts of actively take part in such a brawl. Whether in the theory ofcriminal law or the judicial practice, there are still many controversies in the crime’s basicconstitution, aggravating circumstances and transformation, which makes them worthy offurther exploration. In this paper, the author will take the methods of theory with practice,deductive reasoning and comparative analysis and so on to conduct research on the difficultissues of three aspects of the crime mentioned above.In addition to the introduction, this paper is divided into four parts and around33,000words. The main contents are as follows:The first part is about the finding problem of the objective behaviors of the crime. Withrespect to the crime, the big problem is the finding of objective behaviors of the basicconstitution of the crime, specifically including three aspects: the understanding of “gatheringpeople”, the finding of “affrays” and the comprehending of behavior structures. In this paper,“gathering people” is an objective situation, specifically referring to a de facto state where oneparty musters three or more people or three or more people aggregates spontaneously. Amongit, the “public” is calculated at unilateral standard rather than bilateral or multilateral standard,and people who are not in the scene of the crime may also be in the range of the “public”, andpeople who muster other people themselves shall be counted.“Gathering people” doesn’trequire both parties to meet the standard of the crime, in another word, as long as any partyconforms to the requirements of the crime, the party will constitute the crime;“Affrays” don’trequire that the acts of both parties are illegal, that is, when one party is in good behavior, theother party who acts illegally may still constitute the crime; Locations of affrays should not belimited. Even crimes occur in more hidden places, people shall constitute the crime as long astheir acts comply with other requirements of the crime (such as substantive harm);“gatheringpeople to engage in affrays” is an act, whereas “gathering people” shall be construed as anobjective situation. The second part is about the difficulty in the finding of aggravating circumstances of thecrime. There are four categories of aggravating circumstances, specifically consisting of“gathering people to engage in affrays repeatedly”,“the number of people gathered to engagein affrays is large and so is the scale, thus bring about a bad effect on society”,“gatheringpeople to engage in affrays in public places or on vital traffic lines and causing serious publicdisorders” and “gathering people to engage in affrays with weapons”. In this paper, the authoronly selects two comparatively knotty problems,“gathering people to engage in affraysrepeatedly” and “gathering people to engage in affrays with weapons”, as the subject. Thispaper argues that the aggravating circumstances of the crime are subordinate to the basicconstitution of crime; The word “repeatedly” of the “gathering people to engage in affraysrepeatedly” should be interpreted as not less than three times, and every time shouldconstitute the crime of gathering people to engage in affrays. In addition, the “repeatedly”should be calculated in combination with the standard of the statute of limitation; For thescope of the “weapons” of “gathering people to engage in affrays with weapons” and theresponsible subjects of “gathering people to engage in affrays with weapons”, the authorholds that we should take the criteria of the unity of the subjective and objective.The third part is about the difficult problems of the transformation of the crime. In thispart, the author mainly discusses the nature of the transformational article, the conditions ofestablishment of the transformational crime, the assignment of liability of the transformationand the situation that a criminal turns himself in. This paper argues that the transformationalarticle should be deemed as an attention instead of a proposed rule. People shall be convictedonly where their acts are in accordance with the following conditions: having constituted thecrime, people did kill or hurt other people intentionally and caused serious injury or death tothem. If people simply take part in affrays (general participant) but doesn’t constitute thecrime, even when they result in serious injury or death, they shall not be punished accordingto the transformational article. On the contrary, they shall be punished directly according toarticles they violate.“A person” of “causing serious injury or death to a person” includes anyparticipant of any party and innocent people; the understanding of the assignment of theliability of the transformational crime shall be in conjunction with the principle of the unity ofthe subjective and objective. Only those people who cause serious injury or death to a personobjectively with intention shall they liable for it; considering that the transformational crime has changed the nature of the crime (a different crime), people could be regarded as specialvoluntary confession if they confess the transformational crime.The fourth part is the conclusion. In the course of judicial determination of the crime,this paper argues that we should strictly comply with the principle of the unity of subjectiveand objective and the thought of modesty of criminal law based on the national circumstancesunder the guidance of the fundamental principles of criminal law, and combine them with therelative theory of common crimes. Only in this way can we properly analyze and solve theknotty problems emerged in the course of the judicial determination of the crime. Moreover,in regard to other aspects of the crime not involved here, the author would continue to carryout the research and exploration in the future when a good opportunity comes.