Judgment On The Penalty Of Assaulting Police

In recent years, a growing number of cases of assaulting police happened in China, the phenomena present characteristics of "increasing numbers, more serious degree and uprising severe situation". Assaulting police not only threatens personal safety on the police, but also destroys the ordered law enforcement environment. Furthermore, it increases the people’s insecurity, damages the law enforcement authority and the dignity of the law. In order to better protect the personal safety of police and punish the behavior of assaulting police, "PRC Criminal Law Amendment (9)" added Crime of Disrupting Public Service in Article 277 as the fifth paragraph. It describes: "Whoever by means of violence or assault, obstructs police from carrying out his functions shall be given a heavier penalty in accordance with the provisions of the first paragraph", assaulting police officially has been put into the penalty.①Involving the penalty of assaulting police has responded to the social concerns and manifested the socialist rule of law and justice. However, some scholars believe that putting the assaulting police behavior into the punishment turns out to be unreasonable and unscientific; and some scholars said that using "the crime of disrupting public service" to regulate assaulting police behavior showed malpractices, only by setting up a separate crime of assaulting police in the Criminal Law solely, can better protect police rights and interests. So that makes us to wonder what exactly is the advantages and disadvantages of putting assaulting police into penalty? Are there any necessities of adding the crime of assaulting police? Scholars tend to show their perspectives variously. However, this article will explain elaborately.As the added new term of "PRC Criminal Law Amendment (9)", the fifth paragraph of Article 277 of the criminal law will have to encounter many problems in the understanding and application which leaves enough necessities to be explained. For example, the behavior of assaulting police must be subject to legal regulation, but the "assault" itself also shows that this kind of behavior is malicious and illegal. If only for the legal rights to the police, or to resist the police for not abiding the law, under these circumstances it cannot be claimed that such behavior is "assaulting police". Obviously, there leaves space for us to inquire into "the behavior of assaulting police", as to the suitability for "assaulting police" clause is arguable. The scholars seldom discussed while this paper will answer to these issues.The author in this article, analyzed several typical cases of assaulting police, investigated different academic views in the perspective of comparison method, made multi-angled judgment on the penalty of assaulting police.The practical significance of this paper lies in:through the analysis of characteristics, causes and harms of assaulting police, the exploration on the pros and cons of assaulting police in the criminal investigation, the observation on the conception and application of the fifth paragraph of article 277 will ultimately function the "assaulting police clause" and achieve the purpose of curbing and reducing the behaviors of assaulting police.Apart from the preface and conclusion, this paper is composed of the following five parts:The first part is "the background of setting police-assault into crime ". On the premise of judgment on penalty of assaulting police, is to clarify the background of putting assaulting police into crime. This part introduces the present situation and the causes and harms of assaulting police, which illustrates the legitimacy and the necessity of putting the police-assaulting behavior into penalty.The second part is the "regulation on the police-assaulting behaviors from domestic and foreign criminal law". "Stones from Other Hills May Serve to Polish the Jade", so that we can find out insufficiency and new ideas which help on the analysis on the problem of assaulting police through the understanding of foreign law regulation on acts of assaulting police and made comparisons with Chinese regulations.The third part is "the analysis on advantages and disadvantages of the penalty of assaulting police". Although the penalty is legitimate and necessary, but some scholars still pointed out the malpractice of putting assaulting-police into crime. In addition, some scholars claim that only by putting the police assaulting behavior into penalty is not enough to punish the crime of assaulting police. Instead we must set up a separate police-assaulting crime in the criminal law. Through the analysis on the above two opinions, the author made criticizes respectively and discussed the significance of putting the police assaulting behavior into penalty.The fourth part is "the interpretation of the fifth paragraph of article 277 of the criminal law". Despite it is significant of putting police assaulting into penalty, but this does not mean that the provisions of the fifth paragraph of article 277 of the criminal law is perfect. The clause only describes one sentence with rather abstract and concisely words. The abundance meaning also brings difficulty to understand. The interpretation part is required to explain its application. In this part, the author made his own understanding of "police assaulting clause".The fifth part is "the discussion on application of paragraph fifth of article 277 of the criminal law ". Due to The fifth paragraph of article 277 of the criminal law is a new provision, its application will encounter many issues. The author tried to conclude the possible issues and made corresponding solutions. By all means, the author hopes to exert functions on the "police assaulting clause".