Judicial Cognizance Of Stir-Up-Trouble Crime

Affray crime is a charge separated from79years of criminal law the crime ofhooliganism,97years of "criminal law"293rd article take enumerates four kinds ofbehavior of the crime of provocation. With respect to the crime of hooliganism, withprogress of historical significance to prevent arbitrary conviction of crime. How tocorrectly understand and apply better2013released "for affray in criminal cases thelaw applicable to a number of issues of interpretation", and in the judicial practicewill stir up trouble crime and other elements of the composition and the coincidenceof the crime with distinction, is still a need to solve the problem. The author mainlywith criminal law, two high judicial interpretation, judicial cases, draw the relevantresearch results, is divided into four chapters on the judicial determination of thecrime of affray.The first chapter is the origin and evolution of the legislation of crime of affray.The author thinks, defiance and affray crime and the crime of hooliganism has anatural continuation relations. Trouble is the Chinese meaning contains roguemotivation. Stir up trouble crime and other crimes are not opposites either this or that,but the relationship of cooperation and competition, and even the containmentrelationship. The author thinks, stir up trouble crime at present should not beabolished. First, China and other countries in the tradition of legislation, legislativecharacteristics are different. The criminal penalty starting point is relatively high.Don’t be regarded as crime in our country, in foreign countries are likely to recognizefor the crime. Second, enumerated types the defiance and affray legislation of fourkinds of behavior, the main is a violation of the social order, and requires a specificmotivation, do not disrupt social order and does not have a specific subjectivemotivation, not to stir up trouble crime, the crime has unique obvious. Third, throughperfecting legislation, the new judicial interpretations of the relevant problemsespecially the subjective aspects of crime purpose and motivation, if thecircumstances are serious, serious and public places serious disorder clear, long-termjudicial practice differences, recognition of the inconsistent situation, has been greatly improved.The second chapter is the objective element that stir up trouble crime. Accordingto the2013"explain" high on handling the issues concerning the application of law tocause trouble in criminal cases, the vile, identification of the serious circumstances,one by one interpretation. The author thinks, beating another type of defiance andaffray crime, when the transposition behavior of general people, standing in theposition of the crime, according to criminal human rationality, beating behavior alsolet ordinary people think "incredible", not understand and accept, the assault isoptional. On the other hand, the victim’s replacement for additional social normalpeople, people will also implement the assault, the assault is optional. The vileidentification, the author thinks, this explanation made clear "to more than one personslightly injured or two or more minor injury" constitute a crime, that is to say ifcaused a slight injury, is not worth to use criminal punishment, not as a crime. Thissolves the judiciary over long-term level of harm to what to what standard that stir uptrouble crime confusion, also solve the judicial organs all over the long term that isnot a problem. Vile should include causing serious injury, death results. Bad plot doesnot contain the approach itself cruel and harsh. According to "the Supreme People’scourt, the Supreme People’s Procuratorate for theft in criminal cases the lawapplicable to a number of issues of interpretation","on the handling of criminal casesthe law applicable to blackmail and impose exactions on interpretation of severalissues", the crime of beating another "times", should be in two years more than threetimes is appropriate. Other serious circumstances shall refer to damage degree and thesituation is quite behavior. Chasing, intercepting, abuse, intimidation of defiance andaffray, multiple or lethal weapons chase, interception, abuse, threatening to others,cause certain consequences, the physical and mental health seriously influence otherpeople’s work, life, production, management, identified as vile. Other seriouscircumstances shall refer to damage degree and the situation is quite behavior. Takestrong force or any damage to public and private property, occupation type affrayidentification of the serious circumstances, according to the2013"two" interpretationconcerning some issues of applicable law affray of criminal cases, should take strongforce of public or private property value, times, social influence, the consequences and comprehensive identification. In public places, creating a disturbance, causingserious disorder found in public places, should be based on the public nature of publicactivities, the importance of public places, the number of time, creating a disturbance,public places, the affected scope and degree and other factors, comprehensive judgingwhether "causing serious disorder in public places".The fourth chapter is the limit of defiance and affray crime and other relatedcrimes in which there is a coincidence of the elements of the. Is the main and thecrime of intentional injury, blackmail and impose exactions on crime, robbery,intentional destruction of property crimes, weightlifting to disturb the public ordercrimes, and demonstrate through relevant case. The author thinks, if a behavior is alsoviolated the two charges, shall be in the imaginative joinder of offenses processing.But according to the components and characteristics of the different charges of thiscrime and other crime, still want to distinguish the crime, because only the qualitativeaccuracy, in order to penalty according to the crime.