| The 19 th National Congress of the Communist Party of China was successfully held on October 18,2017.General secretary Xi put forward the establishment of the central leading group for comprehensively administering the country according to law and strengthening the unified leadership of the rule of law in China.To deepen the practice of ruling the country according to law and adhere to the rule of law in an all-round way,we must carry out the party's leadership to the whole process and all aspects of the rule of law,perfect the socialist legal system with Chinese characteristics with the constitution as the core,build a socialist legal system with Chinese characteristics,build a socialist country under the rule of law,and develop the theory of socialist rule of law with Chinese characteristics.Administering the country according to law is a profound revolution of national governance,promoting scientific legislation,strict law enforcement,fair judicature,and law-abiding by the whole people,involving legislation,law enforcement,judicial and various legal departments.The promulgation and implementation of the amendment to the criminal law(eight)has attracted more attention in the legislation of the crime of causing trouble.The legislator further enriches the act of this crime,and the meaning of the crime itself is quite broad.It can be said to a certain extent the role of the crime,making the crime of provocation to expand step by step,and closer to the name of "the crime of the mouth".The crime of provocation and provocation stipulated in the 293 rd provision of our current criminal law stems from the crime of hooliganism in the criminal law of 1979.At the beginning of the establishment of the crime of provocation,the crime of hooligans was inherited,and it had a great uncertainty in the crime,which made the crime of provocation inherit the "SASP" of the former crime in the judicial application.The lack of clarity in the legislation of the crime of provocation leads to the definition of the connotation of the crime is too broad,and there is no clear boundary between the crimes,which makes the boundary between the practice and the trial blur,and violates the principle of legality stipulated in the provisions of the criminal law of our country.In addition,the identification of "serious plot" and "bad plot" basically depends on the judge's subjective judgment,which reduces the consistency of the same case and causes serious harm to the judicial credibility.In view of this,this article tries to find out the problems from the dual angle of legislation and judicature,starting from the source of its legislation,exploring the basic problems of the crime type and the constitution of the crime of provocation,and striving to put forward a complete set of perfect proposals for the completion of the crime of provocation.The article is composed of four parts.The first part is a summary statement of the crime of provocation.Starting from the evolution of legislation,we will summarize the concept of crime of aggression and crime and define the basic types of crime.In this part,through the analysis of the historical causes of the crime of provocation,the author tries to explore the legislative evolution of the crime of provocation from the first act of the crime of hooliganism,and to the legislative evolution of the crime of being decomposed into an independent crime.The logical starting point of the crime is clarified.At the same time,with the help of the analysis of the legal value,it is the basis for the accurate definition of the boundary between the constitution of the crime and the crime.The legislative evolution of the crime of provocation is studied,the function of the crime to protect the society and the protection of human rights is understood,and the nature of the crime of complementing the crime of provocation is considered as a supplement to the related crimes.The second part is the theoretical analysis of the crime of provocation and trouble raising.This chapter combines the supplementary nature of the crime of provocation and crime to study the elements of each crime in the crime of provocation.Regarding the object of the crime,the author thinks that the direct embodiment of the crime of provocation is public order.Regarding the subjective aspect of the crime,this part studies the purpose and motivation of crime.The subjective aspect is direct intent.The purpose of this crime is to seek pleasure from the destruction of public order by seeking spiritual stimulation,and the motive of crime is the distorted psychology of the position.The author also believes that it is not necessary to distinguish the subjective restriction of this crime with special purpose or rascal motive.Then the author analyses the legislative trend of the crime of provocation and provocation.The crime of provocation is decomposed from the crime of hooligans.The defects in the legislation have led to the confusion of the judicial practice.Many scholars have their own opinions.Some of them think it should be abolished and some of them think it can exist.The author believes that it should exist,but it must be amended.From the perspective of the current legal system,the existence of the crime of stir up trouble is also of practical significance.The third part is about the problems of crime of provocation and trouble.First,the author analyzes the legislative evolution of the crime of provocation,and finds that there are historical reasons for the contradiction between the crime of provocation and the principle of legality.It is due to the lack of clarity on the provisions of the legislative provisions on the crime of provocation,the broad terms of the law,and the difficulty of the determination of the judicial practice.Since the collection of evidence has long been influenced by the old concept of law enforcement,the thinking mode that is preconceived first and the presumption of guilt in a few police officers and the thought of heavy attack and light protection still exist,which leads to the random collection of evidence and the difficulty of convictions easily turned over.The scope of the punishment for the crime of provocation is relatively narrow and is not conducive to the fight against crime;the punishment of provocation is less than the punishment of the hooligan,resulting in the increase in the abuse of judicial practice,so the sentence should be adjusted.The fourth part discusses the legislative perfection of crime of provocation and trouble.Based on the problems of crime of provocation,the author puts forward suggestions for legislation improvement.Four suggestions are put forward from the following aspects: definiteness,inter crime limits,evidence collection and criminal law setting.It is pointed out that enhancement of clarity can better follow the principle of legality of crime and punishment,put forward its own definition standard on the boundary between crimes,improve the category of evidence collection,improve the emphasis on indirect evidence,improve the setting of the sentence and perfect the setting of punishment,and hope that these legislative suggestions can make the crime better judicial application and contribute to the comprehensive promotion of the rule of law. |
PDF Full Text Request