The Research On The Criminal Nature Of Article 292.2 Of The Criminal Law

There are many studies on the theory of criminal law nature of affray causing serious injury and death.There is no final conclusion on the theory of fiction theory,prompting and presumption.This paper takes consequence interpretation as the research method to analyze the problem,and finally comes to the conclusion that prompting theory should be used to determine the nature of the problem.In addition to the introduction and conclusion,this paper consists of three parts,the main contents are as follows:Part one puts forward questions and analyze the causes.Firstly,the status quo is investigated and displayed.Legislatively,the description of the crime in this clause is a specific result,which does not involve subjective offences.There are ambiguities in the meaning of the article.At present,there is no authoritative legislative interpretation or judicial interpretation to specify it.Judicially,through the sample statistics of the judicial documents,it is found that there are differences in the application of this clause between fiction theory and prompting,and there are great differences in sentencing between the two interpretations when people affray and cause death.In theory,there are three kinds of theories about the nature of this clause: fiction theory,prompting and presumption.,and there are five criteria and three criteria to distinguish fiction theory from prompting.Secondly,summarize the current situation and clarify the problems.The theoretical research of this clause can not guide judicial practice very well,the interaction between the defense and the trial is insufficient,and there is a big difference in the sentencing of the defendant when the death is caused by the fiction theory and the prompting theory.Finally,it analyses the reasons why many explanations have been debated in theory and practice.The fundamental reason is the ambiguity of the clause itself.The direct reason is the lack of theoretical research on how to solve the conflict of interpretation conclusions.The real reason is the conflict of interests between the interpreters.Part two introduces and proves the explanation of consequence.Firstly,the explanation of consequences is briefly introduced.Consequentialism originates from traditional philosophy and has been introduced into the field of law to form consequentialist argument method and consequential interpretation law.Consequential interpretation has been studied more in the field of constitution and less in the field of criminal law.Secondly,it defines the interpretation of consequences in criminal law.In criminal law,the interpretation of consequences only applies when there are plural interpretation conclusions in legal norms.There is no room for the "rule-created" interpretation of consequences in the field of criminal law.Consequences only refer to the consequences of case judgment,excluding general prevention and other social consequences,and the evaluation criteria are limited to the balance of crime and punishment.Consequence interpretation is restricted by the purpose of criminal law,and it is an independent interpretation method.Compared with other interpretation methods,it is complementary.Finally,the proof of the interpretation of the consequences can be used to study the Article 292.The interpretation of consequences is based on utilitarianism,which has been mature in other legal fields.The preferential attribute can settle the conflict between interpretation conclusions.The statutory penalty has a restrictive effect on the interpretation of charges.Consequently,the interpretation of consequences can be used to analyze Article 292.2.Part three demonstrates the rationality of the prompting theory.Firstly,consequence interpretationis used to explain and analyze Article 292.2.Predicting the consequences of the three interpretative conclusions separately.When the defendant's negligence causes death,sentencing of the fiction theory is excessive,and the defendant's subjective guilt is intentional homicide,but when the subjective guilt cannot be proved,the sentencing of prompting theory of is too light,and the rebuttal of the presumptive defendant is difficult to achieve in practice,which may become a copy of fiction theory.Using the balance of crime and punishment to evaluate the three,there are violations of the balance of crime and punishment.The degree of violation of the prompting theory of is the lightest,and the prompting theory is the best.Using consistency and coordination to test the fprompting theory.Prompting theoryconforms to the principle of unity of subjective and objective and the principle of legality of crime and punishment,so the interpretation of prompting theoryis the most reasonable.Secondly,responding to the criticism of prompting theory one by one,and further demonstrates the rationality of prompting theory.The prompting interpretation accords with the meaning of legislative language.It is necessary to prove the subjective guilt of the perpetrator when people are seriously injured or dead by affray.Scholars cited prompting theory of the imbalance between crime and punishment cannot be established;It is not impossible to prove the subjective guilt of the actor and determine the scope of the subject of responsibility.