A Study On The Judicial Cognizance Of The Crime Of Provoking And Causing Trouble

The introduction of the Criminal Law Amendment in 1997 makes the crime of provoking trouble become an independent crime,which to a great extent breaks through the original malpractice.The emergence of the crime not only provided convenience for the fight against crime,but also played a role in maintaining socialist public security and stability.However,in recent years,with the increase of the crime rate,there have been a lot of controversial cases,which has attracted wide attention of all walks of life.At the same time,the occurrence of these cases also reflects that there are still many defects in our judicial activities.Although the relevant departments have made corresponding legislative amendments and detailed explanations on the crime of provoking and causing trouble through the amendment of criminal law,judicial interpretation and sentencing guidance,it has greatly improved the clarity and reasonableness of the legislation for the crime of seeking quarrels and causing trouble.However,because the fuzzy words such as "at will" and so on,which need to be judged by subjective value,and the variety and complexity of the criminal forms of the crime of seeking trouble and causing trouble in judicial practice,it brings many difficulties to the judicial workers in the determination of this crime.In particular,there are many doubts in the correct grasp and understanding of the subjective and objective aspects of the crime,such as whether the motive ofhooliganism should be regarded as a confirmation because the subjective aspect is not clear.The necessary condition of this crime makes the phenomenon that the discretion is too large in practice,at the same time,some objective aspects of the crime overlap with the crime of intentional injury and other related charges,as well as the lack of provisions on how to determine that the crime caused serious injury and death.All these are problems which the judicial workers need to deal with at the present stage.As we all know,the defective laws and regulations will mislead the judicial practice to a great extent,which is unfavorable to the function of protecting human rights and protecting the legal rights and interests of citizens.On the basis of studying and analyzing the constitution of the crime of provoking and causing trouble,the current law and the judicial interpretation,this paper combines the national conditions and the actual situation of our country.This paper gives some solutions to the problems in judicial cognizance: clarifying the meaning of vague keywords in the article of law by means of judicial interpretation,providing legal basis for judicial practice,defining the motive of crime as the basis of conviction,and making sure that the criminal motive is not the basis of conviction.It is clear that this crime should be dealt with in the same way as that of the other crime,that is,the conviction of the same legal interest is the main offence in the case of object concurrence.Giving play to the complementary characteristics of the crime of provoking and causing trouble;defining the way to deal with cases of serious injury and death;and finally,aiming at the practical "difficult problems" of some social hazards that are ambiguous or difficult to identify as criminal and non-criminal.This paper puts forward the reverse thinking of "punishment by punishment and crime".That is to say,judging whether or not to punish or what punishment to take on the basis of judging the penalty should be punished,and finally achieve the purpose of regulating the crime.