An Analysis Of The Judicial Determination Of The Crime Of Picking Quarrels And Provoking Troubles In The Perspective Of Criminal Interpretation

The crime of picking quarrels and provoking troubles has always been a high frequency crime applicable in judicial practice,and the nine acts covered by it are very easy to compete and cooperate with related crimes in the criminal law,such as the crime of intentional injury,robbery,and intentional destruction of property.The relationship between it and related crimes has been a hot spot and difficulty in theoretical and practical studies.This article embarks from the judicial practice,and strive to explore stir-up-trouble crime and relevant crime conflict processing way,proposed should make full use of the social order the limitation on the stir-up-trouble constitutive requirements of legal interest to explain function,as far as possible to distinguish between related crime,in the case of distinguish cannot,by law as a supplement to rehabilitation sin,by legal punishment to assist in choosing appropriate applicable charges.This paper is divided into six parts.The first part is the introduction,briefly discusses the original intention of this paper.The second part is stir-up-trouble crime judicial cognizance of the status quo,the author use the advantages of their own work in the grass-roots judicial collected by place unit in recent years for stir-up-trouble case,and choose the representative in 19 cases and on this basis,refine the judicial practice to distinguish stir-up-trouble crime and other related crime of common legal considerations,including: "rogue motivation","for a reason or not","not a specific object" and "public".These judicial considerations are analyzed one by one,and it is pointed out that the subjective motive of the crime of picking quarrels and provoking troubles does not affect the establishment of the crime of picking quarrels and provoking troubles.In the third part,the author reflects on two mainstream theories in the theoretical circle,namely,the theory of distinction and the theory of imagination.On the premise of fully discussing the content of "differentiation theory" and "imagination cooperation theory",the author points out its deficiency.Among them,"differentiation theory" lacks practicability,"imagination cooperation theory" may be beneficial to judicial practice,but the principle of judgment is too simple and crude,and blurs the limited interpretation function of social order law interests in the offence of causing trouble.The fourth part is the focus of this article,the author in reflection "distinction" and "imagine competition",on the basis of the proposed system positioning and stir-up-trouble crime in criminal law to rehabilitation crime law to pursue crimes balanced dominant idea determines the dichotomy of thinking,we should adopt progressive type known as priority order law restrictions on stir-up-trouble crime constitutions explain function,and then to rehabilitation crime law as a supplement,auxiliary elect in alternative to apply the charges by legal punishment.This path is the final choice made by the author on the basis of reflecting on the void,lack of operability and the simple and rough handling of the "competing theory of imagination".Fifth part can be classified as the refining results,namely in the fourth part puts forward stir-up-trouble crime and other related criminal conflict under the premise of processing route,return to practice,respectively is beating stir-up-trouble crime and intentional injury,abusive insult stir-up-trouble crime and crimes,strong and stubbornly stir-up-trouble crime and crime of robbery and extortion,any damage to property stir-up-trouble crime and intentionally damaging property crime judicial referee rules for building,hope to help to the judicial practice.The sixth part is the conclusion.