The Understanding And Application Of "Criminal Law" Article292(2)

The crime of affray concerns the double criminal objects,which not onlyprosecutes the public life,but also interferes the order of society.Especially in recentyears,the amount of serious injury and death cases caused by the affray crime areincreasing rapidly,however,because the legislative process does not adapt to socialdevelopment,so we are lack of effective and clear legal provisions,and it has becomeobstacles for the judicial system to deal with cases,to a certain extent inevitabledestruction of Justice.Corresponding with this punishment basis——the Crime Lawarticle292(2),with the understanding and applying of controversial,there are twodifferent views: the legal fiction and the provision of attention.The provision ofattention thinks if it is identified for intentional injury and intentional homicide,thebehavior of serious injury and death caused by the affray must consistent withthe view of crime in the subjective and objective requirements;yet the legal fictionthinks whatever the crime of affray person for any state of mind caused the results ofserious injury and death,whether the behavior is directly caused by the aboveresults,all directly identified for the crime of intentional injury and intentionalhomicide.Compared with the legal fiction,in essence,the provision of attention alsodepends on the theory of constitution of crime,just remind the judicial workers,for theresults of serious injury and death,not only we should be convicted of their criminalresponsibility of affray,but also the criminal responsibility of intentional injury andintentional homicide.To interpret it as provision of attention that there are a seriesof defects,firstly,legislators set the criminal law based on purpose of standardizationof a certain crime,but it just remind the judicial workers,so this artical not has specialsignificance;secondly,if this is provision of attention,there will be no space for theCrime Law article292(2) does not include the “light injury”;Besides,if this isprovision of attention,in addition to rule the exemplary punishment provisions of lightinjury、serious injury and death that caused by affray,we should exemplary rule thissituation when the affraies negligently cause the injury and death,it should be identified for the crime of negligent injury and negligent homicide.The existence ofthese defects, which will seriously affect solving specific problems in practice.The article will through case form leads to the property law dispute of the CrimeLaw article292(2),from system interpretation and consequences of consideration,tonegative criticize the provision of attention,point out that it is notreasonable in setting and application,and from a logical point of positivejustification of legal fiction,to formally protect the rule of law and substantivelyprotect the legal rights,and combine with three aspects’ basis of factual,legalevaluation and function,it is pointed out that the understanding to the legal fictionof rationality,however,it does not mean that judicial authorities apply this articlejust according to the results to dealing with the concrete cases,there are threerestrictions:subjective aspect,subject of crime,causal relationship.As a result of ahigher probability of serious bodily injury of affray,and we cannot comfirm thespecific causal relationship and the concrete mentality of the results of injury anddeath,however,the legal fiction effectively reduces the burden of proof to theprosecution in the subjective aspect and the causal relationship,providily legitimatebasis for judicial workers to effectively fighting against crime,and to achievingjudicial fairness, and justice.