Study On The Knotty Problems Of Judicial Determination Of Affray Crime

The crime of affray is stipulated in the "criminal law" in People's Republic of China in 292nd,and only made provisions are very simple,and the objective elements of the crime should be how to identify,no specific description,Professor Zhang defines it as people gathered to attack the other body or attack each other's body behavior;due to thelack of relevant judicial interpretations around the promulgation of this crime,about the "summary" and other normative views are not comprehensive,therefore,the academic basic crime about the crime cognizance,behavior structure,judicial cognizance and aggravated circumstances causing serious injury death and the transformation terms of identified problems have been many different views,at the same time,in the in the judicial practice of this crime is a difficult problem-in view of this,the author expounds the relevant opinions and practice the representative scholars of judicial opinions,and these opinions were analyzed,put forward their own views on these issues,in order to solve these problems and make a contribution.The article is divided into four parts:The first part is the determination of the crime of affray crime objective behavior basic.In this problem,the author makes a detailed analysis on the connotation of "mob" and "fight" two objective behavior,the author seems to "public" means one for the number three and above,agreed to use unilateral number as the standard,and the "mob" means the ringleaders after planning for the purpose of fighting after gathering 3 people above activity.In the understanding of the "fight",the author analyzes the connotation of "fighting without defense",and the two questions of "the restriction of the place of fighting".The second part is the problem of constructing the crime of affray.As for this problem,there are different opinions in the academic circles:first,the theory of compound action;second,the theory of unitary action.I agree with the single say,that the implementation of behavior only"fights","mob" is not,and elaborates the reason.The third part is the crime of affray aggravated judicial cognizance.China' s "criminal law" the four aggravating circumstances of the crime,the author analyzes the four kinds of situations,such as affraying frequently in "many times" should be identified;what is the "number","large scale" and "social influence",these three conditions in the process of recognition of the role is the same;what is the "instrument",what is "armed",if in the process of affray only one armed,should be how to identify,if only part of one armed,then how should I do that,in detail,and put forward their own view.The fourth part is the research on the identification of serious injuries or deaths of affray.China's "criminal law" provisions of article 292nd of the conversion terms of affray.In the fourth part,the author expounds the basic ideas,this transformation in terms of the premise of transforming crime is the behavior of the crime of affray has been set up,do not have this premise is not transformation.On the basis of this,the author defines the scope of the subject of conversion,the author believes that the whole case conversion and partial conversion is not desirable,and expounds the reasons.In addition,it analyzes "the specific limits of causing serious injury and death" in the "people",in my opinion,the other due to serious injury or death.The people should be "within" boundaries,but some special cases in practice to make the distinction and processing,and made analysis.