Research On Judicial Cognizance Of Arbitrarily Damage Under The Crime Of Picking Quarrels And Provoking Troubles

As one of the four acts under the crime of picking quarrels and provoking troubles, arbitrarily damage under the act of picking quarrels and provoking troubles remains a controversial problem due to few theoretical research about it. People will be confused to distinguish it and the crime of intentional damage of properties in the specific cases. What’s more, some single-cases are also featured with arbitrarily damage acts aiming to forced transaction. As a result, its criminal patterns will present in different modalities. Therefore, it is very necessary to carry on studies about this crime category of picking quarrels and provoking troubles from the aspect of judicature. Guided by the general provisions of Criminal Law, together with the 293 rd provision and relevant provisions about judicial interpretation of Criminal Law, the author carried on judicial cognizance studies about arbitrarily damage under the crime of picking quarrels and provoking troubles and issues concerned, which aims to improve practical operation effectively.Firstly, the author discuss judicial cognizance about “arbitrary” in details, with the relationship between “arbitrary” and “casual” as its focus. Even most scholars in the theoretical community seem to believe that there are no differences between those two words; the author insists that both relationship and difference lie between them. Both of them have the same meaning, which represents subjective state. However, the differences are as follows: the first one is their different degrees. The degree of “arbitrary” is much lower than that of “casual” obviously. The second one is their different usages, which needs to take much more legislative intent into consideration. The following part talks about theoretical controversy in judicial cognizance of “arbitrary” and detailed consideration about relevant factors to its judicial cognizance. In the part of theoretical controversy, the author believed firmly that “arbitrary” is a subjective element, which can be identified both subjectively and objectively. In the part of judicial cognizance, the author argued that “arbitrary” shall be identified comprehensively from the following four aspects: object of infringement, time and place of infringement, tools and methods of infringement, consequences and attitude of infringement. Those four aspects will take on different modalities in the specific cases, which also represent its different patterns of manifestation. Therefore, it shall be considered comprehensively, together with the cases.Secondly, the author studied on “damage”. “Damage” shall be identified from judicial cognizance elements and detailed judicial cognizance. In the part of judicial cognizance elements, “damage” shall be identified by degree and object, motivation and purpose, reasons and ways by the author. Those damage who have serious nature will be punished by imposition of penalty. What’s more, the damaged objects shall enjoy attribute of not particular. Its motivation and purpose are not the special element of arbitrarily damage under the crime of picking quarrels and provoking troubles. Its reasons and ways shall be fluid, but always aim at picking quarrels and provoking troubles. In the part of detailed judicial cognizance, the author argued that amount is necessary for the identification to “damage”. But there still exists something improper in the present judicial interpretation. The identification to amount shall be further improved according to the burglary amount recognized methods, as well as perfect the identification to the damage of immaterialities. In addition, the author also believed that justified damage in the judicial practice shall become arbitrarily damage.Lastly, the author carried on qualitative analysis about arbitrarily damage under the crime of picking quarrels and provoking troubles. In order to distinguish the boundary of crime and non-crime, the author introduced the identification to criminalization and decriminalization as his point of contact, and discussed its condition of establishment or not. The crime shall be established if it enjoys serious nature and attribute of crime. What’s more, constitutive requirements, crime punishment legal principle, prosecution standard of case filing shall be taken into important consideration as well. Justifiable defense is a legal cause of decriminalization. When justifiable defense occurred in the arbitrarily damage under the crime of picking quarrels and provoking troubles, the author will define crime and non-crime by referring to the cognizance of criminalization and decriminalization. The following part mainly talks about the boundaries of arbitrarily damage under the crime of picking quarrels and provoking troubles, the crime of intentional damage of properties, crime of forced transaction. The theoretical distinguish process was carried out mainly from the aspect of constitutive requirements, together with specific cases and qualitative analysis combined with the theory of crime quantity forms. Meanwhile, the author also believed that there are no transformed crimes in the above mentioned crime.