The Cognizance Of Transforming Crime Of Affray Crime

There is a big controversy in the nature of the Article second of the Criminal Law 292 nd in the academic community,and some scholars believe that it is the imaginative joinder of offenses,but others scholars believe that it is the concurrence crime in legal provisions,and also some scholars believe that it is the aggregated consequential offense.The author thinks that the nature of these three views can not overview the nature of Article second of the Criminal Law 292 nd,crime of affray causing serious injury an even death of a person should be punished as crime of willful and malicious injury or offence of intentional killing.It is conforming to the concept and characteristics of transforming crime,and should belong to the provisions of transforming crime.Conversion clause of affray crime belongs to the notice provision,if the negligence causing casualties is regarded as the crime of willful and malicious injury,and offence of intentional killing is regarded as external attribution of guilt,only the behavior of actor fully is in line with the subjective and objective crime,can it be transformed into a conviction.The cognizance of transforming crime of affray crime is difficult to firm because it is not easy to identify the actor.Whether it is "transformation of the whole case" or " transformation of the part of case",it is not a good overview of the body scope of transformation,and only with the body main with responsibility to the crime of intentional homicide crime of intentional injury,the subjective and objective elements of the transformed criminal can be convicted.In recognition of the transformed main body,first of all,we should distinguish whether we can identify directly the perpetrator,if we can find out the direct injurer,we should judge whether the behavior of direct injurer is over restrictions when implementing.In the case that we can not find out the direct cause of injury,whether we can identify the common cause of injury,and the main body of each situation is different,so we should combine with the specific case specific to carry out analysis.In the process of identifying transforming crime,the transformation condition is the key criterion,and the conviction of affray crime must meet the two aspects of subjective and objective conditions.The objective aspect is embodied in the behavior of the conversion happen in the process of implementing the crime of affray.The actor has carried out the act of intentional injury and intentional homicide beyond the ordinary fighting.There is serious injury and even death in the process,and there is a causality between the result and violent behavior.As for the subjective aspect,it reflects the behavior of people who has subjective intent to cause the serious injury or death to the victim,as well as in the crime of affray,subjective intention of the perpetrator has changed,changing from affray into intentional injury,and even intentional homicide."People" in "the crime of affray causing serious injury and death" is not limited to other personnel.Based on the principle of "recognition mistake" and "hit the wrong" in the Criminal Law about causing one's own personnel or people outside the case,it does not affect the conversion of conviction.As for a transformation or mutual transformation,the author thinks that based on the theory of joint crime,there is no common intention in the result of serious injury and even death to the same subject for both parities.Therefore,it is impossible to set up a joint crime within the scope of the transformed crime,and it is only possible to transform the injured party.As for people who has already 14 years but less than 16 years old in the process of gang war.The author thinks that we can apply the transformation clause in terms of the crime of intentional injury,intentional homicide and carry out punishment so as to make a complete evaluation of the behavior of actor.