Judicial Determination Of The Crime Of Affray

Affray crime is a part of the earliest hooliganism,"pocket crime" digestion efforts and strictly implement based on the principle of legality,1997 "the people's Republic of China Criminal Law" amendment,disturb the behavior of the decomposition of the independent crime of hooliganism?Thus,from "hooliganism" to "independent provocation"(the 293 rd article of the criminal law),it is not only the embodiment of the principle of legally prescribed punishment for a specified crime,but also the highlight of the technical progress of criminal legislation."Criminal law(eight)" and "legislative amendments in July 2013 to disturb the crime explanation on the handling of some issues of applicable law affray criminal cases"(hereinafter referred to as the "interpretation")the introduction of further enrich the connotation of the judicial practice and meet the needs of reality.However,due to the charge behavior type is enumerated the way and method of discussion include "free","arbitrary" value judgment should be vocabulary,this will give the charges of judicial identification has brought many problems.Such as how to define the "free" and the establishment of beating A thing has its cause.disturb the crime;how to determine the relationship between crime and similar crimes;rogue motivation trouble at the crime in the criminal law amendment is necessary;effective as of November 1,2015 "criminal law(nine)" special addition of fabrication and deliberate dissemination of false information crime,whether that means in September 6,2013 the two jointly issued "on the handling of the use of information network defamation on some issues of applicable law in Criminal Cases Interpretation"(hereinafter referred to as the "interpretation" of 2013)will lose regulation network rumors to disturb the crime type function? If not,how should we eliminate the obstacles to the crime of affray? Based on these problems,this paper is based on the provisions of the criminal law and relevant judicial interpretation,combined with the specific case,using the method of analysis of legal dogmatics constitute the crime of trouble and behind it,the correct application of affray crime in judicial practice can help.The first chapter of this article is the status of crime of affray.In recent years,with the crime in the general level,especially the "Wenling child abuse case" is to disturb the crime to make it by the academic circle in the teeth of the storm,criticized,dubbed the "small pockets".Because of its pocket tendency is more obvious,today still has the view advocated the abolition of the crime of affray,but the author thinks,not because of affray own "pocket" on the hasty proposal to abolish or abolish the crime,on the contrary,it still has the necessity of existence.The opening of the fuzzy and crime criminal legislation itself,the judicial application is still facing many difficulties,such as beating identification,new problems of the crime and the similar charges between and under the network environment.The second chapter of this article focuses on the judicial determination of the specific behavior types of the crime of affray.The article of law is the product of legislation,the case is the object of justice,and the law applies to specific cases through judicial practice,which is the characteristics of judicial activities.Therefore,by using the method of criminal case analysis is to solve the difficult problems encountered in the judicial practice is one of the feasible methods to make up for the legislative and judicial interpretation of vulnerability,but also to promote the criminal justice more fair and equitable.In the light of specific cases,the author uses criminal law theory to analyze cases and sort out every behavior type of the crime of affray,in order to help the judicial activities to determine the objective behavior of the crime of affray.The third chapter of this article is the determination of the subjective motives of the crime of affray,and focuses on the analysis of whether subjective motivation is necessary in determining the crime of affray.The author believes that,at present,in the judicial practice of the crime of affray,the purpose and motivation factors are no longer appropriate as an essential element of their constitutive elements of crime.There is effect of motivation factors based on the crime of affray in affray crime,the key is to make reasonable positioning of the role of motivation in the subjective aspect,the object recognition based auxiliary function.The fourth chapter of this article is about the new problems of crime of affray.With the advent of the Internet era,the new problems of crime of affray are growing.In 2013,"interpretation" introduced the crime of affray into the regulation of Internet rumors,which had certain rationality and necessity.This article holds that,although the “criminal law(nine)“has created the crime of fabricating and intentionally spreading false information,there is still room for application of the crime of affray.