Research On The Judicial Application Of The Crime Of Arbitrary Assault

The crime of picking quarrels and provoking trouble(Stir-up-trouble crime)is a common crime in the judicial practice,in which the objective behavior of "random beatings,if the circumstances are flagrant" is more applicable in the judicial practice,but the terms of the most difficult to recognize.The objective performance of the crime of picking quarrels and provoking trouble is extremely similar to that of the crime of intentional injury and affray,both containing beating behavior,and stir-up-trouble crime law attempt to distinguish this crime from other crimes just by such subjective expressions as "random","flagrant" etc.In addition,as the judicial staff have various understandings of the subjective words like "random" etc.All above reasons lead to different sentence.As a result,it is not in conflict with the principle of the balance between a crime and punishment,and it’s not conductive to the protection of human rights.This paper discusses and analyzes the difficult position of the judicial application of the "random beating"-type crime of picking quarrels and provoking trouble,according to two cases with different results of judgment.It considers the correct understanding of "random beatings" as the key to distinguishing whether the behavior constituted to be the crime of picking quarrels and provoking trouble or not,constituted this crime or that one.This paper also states the importance and limitation of the judgment of "random" by "displacement principle" and "the understanding of the common man".Meantime,it proposes its own view of "Rogue Motivation",which is controversial in the theories.It recognizes the "random beating"-type crime of picking quarrels and provoking trouble comprehensively according to the conviction rule of the unification of subjectivity and objectivity and the contacts of the cause,development of the things.This paper is divided into four parts.The first chapter introduces the basic situation and the controversy of the two cases,proposed the "random beating"-type crime of picking quarrels and provoking trouble in the judicial application.The puzzled confirmation of the crime in the law,and different understanding of different judicial staff,finally leads to the same or similar case having different results of judgment,which is controversial.The second chapter discusses the random assault crime in the judicial application of the difficulties:First,it is difficult to protect the legal interests.To protect the legal interests in the crime of picking quarrels and provoking trouble,whether it is public order or personal physical safety,are too abstract.Neither of them is the essential characteristic that distinguish from other crimes.Second,Objective expression of the difficulties in the crime of.picking quarrels and provoking trouble are similar with that in the crime of intentional injury and other crimes,however,the law only use subjective expression and phase such as"random" and "making trouble out of nothing" etc.,which is not specific,operable enough to distinguish.The third chapter focuses on How to correctly apply random-beatings-type stir-up-trouble crime in the judicial practice,according to the problems above.It thinks that beating behavior as the optional feature to distinguish whether it is constituted to be a crime or not,or it is constituted to be this crime and that one.It also confirms the importance of "displacement principle" and "the understanding of the common man" in the definition of "random",and provides Supplementary opinions.At the same time it states its opinion of "rogue motivation","rogue motivation" is derived from the crime of hooliganism,but that does mean that the crime of picking quarrels and provoking trouble does not require "rogue motivation".The fourth chapter of this paper discusses the beginning two cases,and expresses that there are some problems in both of them.Because of the complementary of the crime of picking quarrels and provoking trouble,this crime were frequently applied as a save clause to convicting for conviction in judgment when under public pressure.