On Determination Of Active Participant And Transformation Of Crime In Affray Cases

As a kind of typical mass crime,affray has seriously affected the stability of social order and therefore should be cracked down with great efforts.Meanwhile,its legal application and criminal judicial determination have raised great concern in both theoretical circle and practice circle.However,since this crime involves a lot of theoretical issues,disputes about it in academic circle never cease.In juridical practice,there is a lack of unified standard though normative documents have been issued by different places one after another;the division of opinions among places has resulted in groundless judging results.Meanwhile,the phenomenon of “different judgments to same case” happens frequently,which has directly resulted in regulation mess for the crime.Considering that,this paper has drawn forth two major disputes about imputation of such cases by basing on the affray case of Liu Xiang.Moreover,this paper has made a theoretical analysis and put forward the author's ideas and suggestions with a view to doing some contribution to the determination of this crime in practice.This paper consists of four parts.In the first part the issue is put forward.This paper,by basing on the affray case of Liu Xiang and making a brief introduction to case details and disputes among judiciary authorities when handling,has summarized two focus issues when handling such cases: first,how to determine active participants in affray cases;second,crime transformation issue of affray crime,that is,how to determine the crimes of ringleaders and active participants(include direct infringers who caused casualties)and punish them in the case of “causing serious injuries or death to people”as stipulated in term two of this crime.The second part is jurisprudential analysis of focus issues.This part will focus on three points.The first section is basic jurisprudential statement,which makes a brief summary of historical evolution and status quo of affray crime as well as its concept features and constitutive elements of crime.The summary lays a theoretical foundation for the following parts.The second section is discussion of the first focus issue of this paper,that is,how to determine active participants of affray.Upon the comparative analysis of “subjective and active determinism” and “participation degree determinism”,the author holds that: according to the principle of subject and object consistent,both subjective intentions of doers and objective behaviors of participating in affray should be taken into account when determining active participants for specific cases;upon that,further confirm the determination from types of active participants,their distinctions from common participants and possibility of determining the principal and the accessory.The third section is discussion of the second focus issue of this paper,that is,crime transformation of affray crime.First,a comprehensive discussion on legal attributes of term 2,clause 292 of criminal law is made.This clause is deemed as legal fiction from original intentions of legislators.Meanwhile,according to transformation crime constitution theory,this clause is transformation crime clause instead of concurrent crime clause.Second,the understanding of “cause” and range of “people” stipulated in term 2,clause 292 of criminal law are discussed.It is deemed that the subjective sin form of “cause” is indirect intent and negligence,but the “people” in this clause include not only people of opposite party but also people of self party and innocent people;meanwhile,aberratio ictus and mistake of law of doers have no impact on transformation application of this clause.Third,transformation responsibility and crime quantity of the crime are stated.According to joint crime theory and principle of subject and object consistent,the author holds some ideas on transformation : the principal of damaging party is to undertake all criminal fact responsibility of the party and transformation of conviction should be practiced;transformation of conviction to active participants who have directly caused damages to people should be practiced;transformation of conviction should also be practiced on other active participants who otherwise should be condemned as affray crime.The fourth part is on completion suggestions.Though there are ambiguous provisions on affray crime and that has directly resulted in various puzzling problems in juridical practice,its existence is very significant for cracking down such crime.To better bring the regulation function of this crime into play,therefore,it is suggested to add Aggravated punishment scenario to clause 292 of criminal law,clearly set it as provision for attention,issue unified judicial interpretation and release typical guiding cases so as to better guide juridical practice.