| The crime of picking quarrels and provoking troubles evolved from hooliganism of 1979’s Criminal Law of the People’s Republic of China. From the behavior of disturbing troubles to the crime of picking quarrels and provoking troubles, this crime experienced 1997’s Criminal Law to be a separate crime, then experienced a modified by People’s Republic of China Criminal Law Amendment (eight), the legislation of the crime is becoming more reasonable.However, the crime of picking quarrels and provoking troubles has been unable to shake off accusations of "pocket crimes", which limits the relationship with other charges have also been criticized for theorists. The relevant judicial interpretations on the crime of picking quarrels and provoking troubles in 2013 bring the crime into the spotlight.The current theory of the abolishment of the crime of picking quarrels and provoking troubles, and reservation can be divided two categories as a whole. The majority of scholars who advocate the abolishment saying the little difference of behaviors between the crime and other offenses, leading to identification difficulties, advocate the four types of behavior of the crime of picking quarrels and provoking troubles to be decomposed, shall be punished by other related charges, and then abolish this sin. The theory of reservation generally believed that the crime itself has multiple complementary nature of the offense, not to advocate the abolishment of the crime, but to give it a reasonable explanation, some people think the crime of picking quarrels and provoking troubles accord to the current criminal policy of combing leniency with rigidity, and thus that their presence there is reasonable.The theory of abolishment’s foothold is the nature of the crime as "pocket crimes", so the crime itself has hidden a violation of the principle of a legally prescribed punishment for a specified crime and human rights violations, and with judicial practice of the crime not uniform, lead to incriminating boundary of the crime unclear, and makes people worry that the crime become the tool of abusing judicial power. In addition, the little difference of behaviors between the crime and other offenses, is also one of the reason to weaken the independence of the crime of picking quarrels and provoking troubles. Reservations based on the necessity of combating crime prevention, implementing the current criminal policy, the crime of picking quarrels and provoking troubles played a very good role to intercept other charges, and the crime itself has multiple complementary nature of the offense, from the criminal law system, the establishment of the offense is necessary. Just stick the principle of legality in criminal policy considerations on the basis of retention disturb the crime is feasible.Focus of controversy between the two theories is that basing on the principle of a legally prescribed punishment for a specified crime and protection of human rights to abolish the crime, or according to the criminal policy considerations based on the protection of legal interests to reserve the crime.If unifying the principle and the criminal policy, starting from the relationship between them, and striving to find a balance point, protect the legal interest of criminal law from unlawful infringement in maximum security of civil liberty at the same time, and reconcile the abolishment and reservation. As long as we persist in the principle of a legally prescribed punishment for a specified crime in the basis of the criminal policy, reserving the crime is feasible.The formal content of the principle of a legally prescribed punishment for a specified crime requires that the factual judgment of identifying a crime and applying penalties must be made in accordance with the fact that criminal law norms, and the criminal policy is a value judgment on the legal facts, in this sense, the criminal policy has the value of the purposefluness of criminal law. So, what kind of behavior should be defined as a crime, and guiding criminal legislative, became an important part of the criminal policy. Effective criminalization is to define what kind of legal interest should be protected by the criminal law, and the process of criminalization is the process of the criminal policy’s value selection, also to determine the scope of protection of legal interests. The criminal policy for the content of the principle provides a rational basis——legal interests’ protection.Ideological basis of the principle of a legally prescribed punishment for a specified crime is democracy and freedom, the right to limit the penalty, because the penalty itself is a restriction on the freedom of the individual, but this restriction is to maximize social freedom. The principle not only limits the formulation criminal policy, but also limits the social utility of the criminal policy. Because legal interests’ protection should not exceed a reasonable limit of the protection of human rights, and the application of criminal law is applicable restrictions on freedom, and the border of the legal interests’ protection affects the scope of protection of human rights. So in order to protect the human rights, provisions of the criminal law must be clear, that is clearing scope of protection of legal interests. From legislative history of the crime of picking quarrels and provoking troubles, what can be summed up-the need to implement the protection of human rights is gradually implementing alternatives the need to combat and control crime. But the two can not be completely opposite.From the view of the temper justice with mercy criminal policy’s guidance on the principle of a legally prescribed punishment for a specified crime, the criminal policy affects the criminal legislation, and the value of the option on the punishment of the criminal law for wrongdoing or not is the criminal policy content. After defining what legal interests should be protected by the criminal law, starting from the protection of human rights, the criminal law should be as clear as possible, making the judicial application process fair. Under the current criminal policy of combining leniency with rigidity, should be formed strict but not harsh, and ultimately achieve the goal of protecting human rights. |
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