Judicial Identification Of Obstructingthe Objective Aspects Of Nuisance Police Crime

Along with the continuous development of social economy,China,on the stage of social transformation,has been named as the country of fastest economic development in the world,accompanied by the further diversification,complication and extremalization of social contradictions.Policemen,as the principal armed forced to maintain the overall stability of public security,play an important role in fighting against crime and protecting the public.However,the conflicts between policemen and the public harmful to the performance of public affairs during daily law enforcement have been occurring frequently.Such cases with wide extension and widespread concern can usually exert negative impacts on social stability and prosperity.Article 277 of Chinese Criminal Law is about the concrete contents for the crime of interference with public servants;and Stipulation 5 regulates that “violent attack towards policemen shall be given a heavier punishment according to Stipulation 1”.Nonetheless,the abstraction and generality of legal provisions have resulted in the increasing diversification of human disturbance and obstruction during the process of law enforcement of public servants.Furthermore,it is extremely difficult and unworkable for judicial departments to ascertain a fact of interference with public servants,the scale of interference with public servants as stipulated by relevant laws and the legitimacy of law enforcement,and the forms or methods applied to intervene the law enforcement of public servants.Simply speaking,the judgment of guilty or not and criminal attribution,and the possibility of extremely different trial results for the same case due to the discretion of judicial departments have made it a prominent problem to ensure the authority and consistency of cases about interference with public servants.The author,as a policeman based on the actual working situation,analyzes and discusses the issues from the following three aspects.The first section analyzes and discusses relevant concepts referring to the research,including the discussion and differentiation of “public affairs” and “police affairs”.Based on analyzing the concept and various arguments of interference with public servants,this paper expounds on the concept and expression mode of behaviors intervening policemen's performance of public affairs.The second section analyzes the behaviors intervening policemen's performance of public affairs objectively;defines “legitimacy” and “timeliness” of police activities,the “violent” and “threatening” means and degrees,and the behavioral objects of “humans” and “objects”,by integrating the arguments of several scholars.The author suggests that the “legitimacy” and “timeliness” of policy activities are the significant elements and prerequisites to constitute this crime indispensably: “legitimacy” indicates to insist in the dual legality of contents and procedures;and “timeliness” is essential to find guilty of this crime.The determination of this crime involves several links,including the concrete preparations for the performance of public affairs,the concrete performance process,and the preparations relevant to the public affairs.Violent means relevant to this crime are usually divided into the direct and indirect means,with invisible or intangible violent means excluded.However,the violent and threatening degree of this crime shall be subjected to the concrete cases individually,and the penalties shall be subjected to the physical injuries of policemen,the degrees of property damages and the subsequently social impacts,in line with the principle of subjective complying with objective and punishment suiting to crime.The third section concretely analyzes the problems existing in the judicial practice of China at present,including parties involved pushing over and besieging public servants;and these behaviors shall be verified as violating means against public servants by laws and constitute the crime of interference with public servants.However,it shall not be ignored that such violent behaviors of hindering law enforcement of public servants will restrict the physical freedom of public servants and impact the smooth and in-time accomplishment of public affairs when reaching certain degrees;if certain degrees are not reached without substantial impact on the performance of public affairs,parties involved shall not be determined the crime of interference with public servants,but be punished according to the regulations as set forth in Public Security Administration Regulation.For verification of suicide threatening behaviors,suicide is an individual behavior of a natural person,so that it is difficult to threaten the public safety and not against the Criminal Law.Any blind determination of this crime will not respect the legitimate rights and interests of citizens and extend the scope of Criminal Law virtually.In general,policemen on duty or off duty are responsible and liable to perform public affairs in case of any emergency situation.Therefore,any citizen hindering a policeman's performance of public affairs off duty shall be verified as conducting the crime of interference with public servants.In other words,the law enforcement security of policemen off duty shall also be protected by laws,under the prerequisite that the law enforcement behaviors and procedures of policemen shall be legitimate.Verification for auxiliary police officers and the behaviors of damaging law enforcement equipment shall be based on the existence of any necessary connection between auxiliary police officers,law enforcement equipment and the public affairs being performed.If the connection exists,this crime shall be constituted.Verification of policemen's relatives and friends' crime of interference with public servants shall be based on the existence of any direct connection between the performance of public affairs and the individual activities of the relatives and friends.If the injury incurred by policemen's relatives and friends hinders the normal performance of public affairs,this crime shall be constituted.To verify whether flaws in law enforcement behaviors can mitigate relevant parties' responsibilities,the prerequisite shall be the existence of any direct impact of the flaws on the behaviors of interference with public servants.Based on the arguments mentioned above,this paper expects judicial departments to determine the crime of interference with public servants fairly,scientifically and rationally,to guarantee the basic interests and rights of citizens and the smooth performance of public affairs by law enforcement officers in China,in order to create a sound and civilized legal environment.