Studies On The Judicial Recognition Of The Crime Of Affray

The defiance and affray crime is a crime prescribed in Chinese Criminal Law. It is not commonly used in the past, but is used frequently in recent years. As criminal punishment is the most severe punishment in China, the application of every crime in the criminal law will have a far-reaching impact on the party involved. In order to standardize the rational application of the defiance and affray crime, based on the stipulation of article 293 in the criminal law and juridical interpretation related to the crime, this paper analyzes and summaries the cases in practice and attempts to probe the judicial cognizance issue of the defiance and affray crime.In order to clarify the cognizance issue of the defiance and affray crime in judicial practice, this paper makes a detailed analysis of the defiance and affray crime from the objective and subjective aspects. According to the stipulation of the criminal law and its juridical interpretation, the objective aspect of the defiance and affray crime mainly includes the following four behaviors:"willfully attacking another person and the circumstances are bad"; "chasing, intercepting, or cursing another person, and the circumstances are bad"; "forcibly taking away, demanding, or willfully damaging or seizing public or private property and the circumstances are serious"; and "creating a disturbance in a public place, causing serious disorder". In the stipulation mentioned-above, there are many fuzzy words like "willfully", "bad", "public place", and "serious disorder". Without reasonable limitation in the application scopes of these words, waffling or inconsistent judicial judgement may occur in juridical practice. Through the summary of relevant judicial interpretations and court decisions, the author builds a preliminary framework and system of the application scope of the words mentioned-above, and attempts to clarify the objective aspect of the defiance and affray crime so as to realize the uniform judgement to relevant issues in judicial practice.Then this paper compares the defiance and affray crime with some similar crimes including crime of intentional injury, crime of intentional destruction of property, crime of affray and robbery, through which, the author finds that the constitutive requirements of these crimes are relatively explicit and easy to be categorized, while the constitutive requirements of the defiance and affray crime-the provocative and disturbing behaviors are not represented by its external characteristics but its nature, and the categorization of the crime is based on the evaluative factors of the behaviors instead of factual factors. As the defiance and affray crime is seldom categorized, and its range of constitutive requirements is relatively abstract, enlarging interpretation is easily occurs in judicial practice, which leads to the extension of the application scope of the crime.In addition to the objective behaviors of the defiance and affray crime, the author also expounds that motive for behavior should not be taken as an element of the constitutive requirements of the crime. First, motive comes from one’s inner heart, imperceptible and on constant change. Second, incorporating motive for behavior into the constitutive requirement will easily give rise to misuse of the crime due to the wide range of motive. Third, the same motive may lead to different behavioral outcomes. Therefore, if motive for behavior is taken as one of the constitutive requirements, conflicts may occur in the conviction of the imaginative jointer of offenses. Finally, the criminal law evaluates the specific behavior of does. However, the behavioral outcomes of the crime are so diverse that it is hard to fathom every motive for the behavior. Thus, an overwhelming emphasis on motive for behavior will to some extent influences the normal operation of the defiance and affray crime in judicial practice.